N10056

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 1137 OF 2014

BETWEEN

JANE MOREA POSA
First Plaintiff

AND

HENRY KEKEBOGI
Second Plaintiff

AND

SERGEANT TIMOTHY AIGA
First Defendant

AND

PAPUA NEW GUINEA DEFENCE FORCE
Second Defendant

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani: Makail, J
2022: 5th July, 12th August & 6th December

ASSESSMENT OF DAMAGES – Assessment of damages following entry of default judgment – Claim for damage to motor vehicle and occupants – Costs of repairs – Personal injuries – Permanent disability – 40% loss of use of right arm – Award of damages – General damages – Pain and suffering – Award increased by double for inflation – Special damages – Medical costs – Costs of transportation and food – Proof of – Nominal damages awarded 

Cases Cited:
Kandapak v. The State [1980] PNGLR 573
Andrew Caswell v. National Parks Board [1987] PNGLR 458
Kuriti v. The State [1988-89] PNGLR 633
Nali Matabe v. The State & MVIT (2004) N2767
Takura v. Motor Vehicles Insurance Limited (2010) N4105 
Omonon v. Kuanga (2012) N4686
Shelley Kupo v. Motor Vehicles Insurance (2002) N2282

Counsel:
Ms. E. Waeda, for Plaintiffs
No appearance, for Defendants

JUDGMENT
6th December, 2022

1.	MAKAIL, J: This is a trial on assessment of damages following entry of default judgment on 30th November 2016.  Trial was conducted on the papers with written submissions to be filed by the parties.

2.	Learned counsel for the plaintiffs filed written submission and the Court acknowledges the assistance of learned counsel.  No submission was filed by the defendants.

Background Facts

3.	The Court’s findings are based on the following affidavits:

1.	Affidavit of the first plaintiff sworn 5th May 2016 and filed 13th May 2016,
2.	Affidavit of the second plaintiff sworn 6th October 2014 and filed 14th October 2014,
3.	Affidavit of Lorelle Toidalema sworn and filed 15th October 2014,
4.	Affidavit of the Dr Siwi Wawe sworn 1st April and filed 4th April 2022,
5.	Affidavit of the first plaintiff sworn 13th April and filed 19th April 2022, and
6.	Affidavit of the second plaintiff sworn 13th April and filed 19th April 2022.

4.	Except for inadmissible evidence on the ground that it is hearsay, irrelevant, argumentative or submissions on law, much of the evidence by the plaintiffs and their witness Dr Siwi Wawe is uncontroverted, and the Court finds that, on 23rd August 2013 on the road from the Goldie Army Barracks to Port Moresby a motor vehicle owned by the second and third defendants and driven by the first defendant ran into the motor vehicle owned by the first plaintiff and driven by the second plaintiff.  The first plaintiff’s motor vehicle is described as a Hyundai Tuson sedan bearing reg. no: BDN-899 and the third defendant’s Mitsubishi Canter truck, reg. no: ZDM-306.

5.	The first plaintiff did not sustain any injury.  The second plaintiff sustained injuries to his face and right arm and was in great pain.  He was rushed to the Port Moresby General Hospital and following x-ray examination, was diagnosed with a fractured right ulna and radial head dislocation.  

6.	He suffered a deep rugged laceration over the fractured site and underwent surgery to fix it.  A K-Wire of 2.5 mm x 200 mm was applied to close the facture wound and to reduce the radial head dislocation.

7.	Due to the injury to the right arm, it caused him great pain and discomfort and restricted its movement.  He is unable to lift heavy objects and work as before.  Not only that but it has caused permanent scars over the right arm and shoulder.  Dr Siwi Wawe who was responsible for providing medical care and surgery to the second plaintiff in the medical report of 7th March 2014 assessed the combined anatomical and functional permanent impairment of the right upper limb at 60%.  Following a review of the second plaintiff four years later, the doctor formed a view that the second plaintiff’s loss of use had slightly improved and in a further medical report of 6th June 2018, assessed the loss of use at 40%.

8.	The first plaintiff’s motor vehicle sustained damage to the driver’s side back door and windows.  The first plaintiff obtained two quotations for costs of repairs.  First from Boys Toys of K19,406.75 dated 2nd November 2013 and Ela Motors of K29,123.55 dated 5th April 2022.

Damages for costs of repairs

9.	Learned counsel for the plaintiffs submits that while the first plaintiff did not sustain any injury, her motor vehicle was damaged as a result of the collision.  Because of this, she should be awarded damages for the costs of repairs for the motor vehicle.  She submits the first plaintiff was unable to obtain a third quotation for the costs of repairs but based on the two quotations, the lower sum of K19,496.75 from Boys Toys be awarded.

10.	Learned counsel’s submission is upheld.  The fact that the first plaintiff did not sustain any injury does not bar her from making a claim for damages for costs of repairs so long as there is proof of damage to the motor vehicle.  Here the motor vehicle sustained extensive damage to its right side exterior and there are two quotations provided.  Out of them, the lower sum quoted by Boys Toys is K19,496.75 and outlines the parts which needed repair and replacement and costs.  This sum is fair and reasonable.  The Court awards K19,496.75 as costs of repairs.

General Damages for pain and suffering

11.	Learned counsel submits that based on past cases like Kandapak v. The State [1980] PNGLR 573; Andrew Caswell v. National Parks Board [1987] PNGLR 458; Kuriti v. The State [1988-89] PNGLR 633; Nali Matabe v. The State & MVIT (2004) N2767; Takura v. Motor Vehicles Insurance Limited (2010) N4105 and Omonon v. Kuanga (2012) N4686 where loss of function of arm between 15% and 70% general damages between K10,000.00 and K30,000.00 were awarded to compensate the injured plaintiff for pain and suffering.

12.	The Court accepts learned counsel’s submission as being a correct and fair summation of the awards based on the rates of loss of function of the plaintiffs’ arm assessed by the doctor.  From the latest medical review, the Court further accepts the loss of function of the plaintiff’s right arm of 40% as assessed by Dr Siwi.  The Court notes that the second plaintiff’s right arm injury is similar to the one in Takura v. Motor Vehicles Insurance Limited (supra).  In that case the plaintiff was injured in a motor vehicle accident and suffered 40% loss of function of right-hand shoulder.  General damages were assessed at K30,000.00.

13.	Learned counsel further submits that it is appropriate to increase the sum to take into account inflation as was done in the case of Shelley Kupo v. Motor Vehicles Insurance (2002) N2282.  The sum should be doubled and K60,000.00 should be awarded.

14.	For consistency and based on the case of Shelley Kupo v. Motor Vehicles Insurance (2002) N2282 the Court accepts learned counsel’s submission that the sum should be doubled to take into account inflation.  Finally, consistent with Takura v. Motor Vehicles Insurance Limited (supra) where the plaintiff suffered 40% loss of function of right-hand shoulder from a motor vehicle accident and was awarded K30,000.00, the Court will double this sum to cover for inflation.  The Court awards K60,000.00 for general damages for pain and suffering.

Special Damages

15.	Learned counsel concedes as special damages requires strict proof, there are no receipts of payments for medical and associated costs for the second plaintiff.  However, she submits that there is evidence to establish that the second plaintiff was hospitalized and underwent surgery in the form of medical reports by Dr Siwi, admission, pathology, and operation etc which added up to K5,234.00.  This evidence is sufficient to support an award of special damages.  

16.	The Court notes the concession by learned counsel that as special damages require strict proof, there are no receipts of payments for medical and associated costs for the second plaintiff.  However, the Court accepts learned counsel’s submission that there is evidence to establish that the second plaintiff was hospitalized and underwent surgery in the form of medical reports by Dr Siwi, admission, pathology, and operation record, etc.  This evidence is sufficient to support an award of special damages.  However, considering the concession by learned counsel that there are no receipts of payments, to arrive at K5,234.00, the Court is of the view that the sum claimed will be reduced by half.  Rounding it up, the Court awards K2,500.00 as nominal damages for medical and associated costs.

Interest

17.	Learned counsel submits that the defendants pay interest at rate of 2% on the judgment sum from date of accident of 23rd August 2013 to date of trial pursuant to Sections 4 & 6 of the Judicial Proceedings (Interest on Debts and Damages) Act, 2015. The Court notes that there are two plaintiffs, and each makes a separate and specific claim for damages.  However, learned counsel did not address whether there should be a separate or one award of interest on the judgment sum for the plaintiffs.

18.	The Court is of the view that as there are two plaintiffs and each makes a separate and specific claim for damages, there shall be a separate award of interest on the judgment sum at rate of 2% for each plaintiff.  As to date of commencement of interest, the Court further notes the plaintiffs’ explanation that it took a while for them to obtain the Police Accident Report and instruct a lawyer to institute this proceeding and progress it to trial.  The Court is of the view that the explanation is not strong enough to justify an award of interest to commence from the date of accident to date of trial.  On the other hand, it was their obligation to expediate a claim for damages and they were not that diligent.  Because of this, the Court prefers the option that an award of interest will commence from the date of issue of writ of summons to the date of final settlement. 

19.	Accordingly, the defendants shall pay interest at rate of 2% on the judgment sum of K19,496.75 from date of issue of writ of summons of 19th September 2014 to date of final settlement to the first plaintiff pursuant to Sections 4 & 6 of the Judicial Proceedings (Interest on Debts and Damages) Act, 2015. 

20.	Secondly, the defendants shall pay interest at rate of 2% on the total judgment sum of K62,500.00 from date of issue of writ of summons of 19th September 2014 to date of final settlement to the second plaintiff pursuant to Section 4 of the Judicial Proceedings (Interest on Debts and Damages) Act, 2015. 

Legal Costs

21.	An award of costs is discretionary and unless there are good reasons to other otherwise, it is awarded in favour of the successful party.  The plaintiffs were successful in establishing their damages.  It follows that the defendants shall pay the plaintiffs’ costs of the proceeding, to be taxed, if not agreed.

Conclusion

22.	The Court notes the second plaintiff mentioned in his affidavit that because of his injuries, he lost his job as a member of the Papua New Guinea Defence Force.  The Court further notes that learned counsel did not press a claim for loss of earning for the second plaintiff in submissions.  In any case, the second plaintiff did not plead it in the statement of claim and adduce evidence of rate of income received from his former employer.  Any claim for loss of income is disregarded.

Order

23.	The orders are:

1.	Judgment is entered against the defendants in the sum of K19,496.75 as costs of repairs of the first plaintiff’s motor vehicle.
	
2.	Judgment is entered against the defendants in the total sum of K62,500.00 which comprises of:

(a)	K60,000.00 as general damages for pain and suffering for second plaintiff; and

(b)	K2,500.00 as nominal damages for medical and associated costs for second plaintiff.
	
3.	The defendants shall pay interest at rate of 2% on the judgment sum of K19,496.75 from date of issue of writ of summons of 19th September 2014 to date of final settlement to the first plaintiff pursuant to Sections 4 & 6 of the Judicial Proceedings (Interest on Debts and Damages) Act, 2015. 

4.	The defendants shall pay interest at rate of 2% on the judgment sum of K62,500.00 from date of issue of writ of summons of 19th September 2014 to date of final settlement to the second plaintiff pursuant to Sections 4 & 6 of the Judicial Proceedings (Interest on Debts and Damages) Act, 2015. 

5.	The defendants shall pay the plaintiffs’ costs of the proceeding, to be taxed, if not agreed.

________________________________________________________________
Public Solicitor:  	 Lawyers for Plaintiffs 
Solicitor General:	Lawyers for Defendants