Paraka v Motor Vehicles Insurance Ltd [2023] PGNC 468; N10599 (6 December 2023)

N10599

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 108 OF 2019

BETWEEN
REX PARAKA
Plaintiff

AND
MOTOR VEHICLES INSURANCE LIMITED
Defendant

Waigani: Shepherd J

2021: 2^nd December
2023: 6^th December

DAMAGES – assessment of quantum of damages - personal injuries – leg/arm/wrist injuries – 15% loss of efficient use of left knee - 5% loss of efficient use of left wrist affecting left arm - scarring of fracture site in right leg – contingent onset of osteoarthritis in affected upper and lower limbs – subsistence farmer – principles for assessment of damages for personal injuries - measure of general damages for pain, suffering & loss of amenities – effect of inflation on general damages – inflation factor of 30% applied to earlier comparable judgments for similar personal injuries - award of K35,000 for general damages – measure of damages for past and future economic losses - credible evidence of loss of income from sale of agricultural produce – deduction of 20% from plaintiff’s estimated income to allow for assistance given by plaintiff’s two wives in production of plaintiff’s agricultural crops for sale at roadside markets– award of K8,280 allowed for past economic loss for one year – award of K16,530 for future economic loss projected over 5 years.

INTEREST ON DAMAGES – rate of interest to be applied to past economic losses – Judicial Proceedings (Interest on Debts and Damages) Act 2015, s.4 - conventional rate of interest of 8% yearly applied.

Cases Cited:
Aiwara v. Cocoa Board of PNG (2017) N6788
Albert v Aine (2019) N7772
Bagu v Motor Vehicles Insurance Limited (2023) N10111
Kolokol v Amburuapi (2009) N3571
Martin v Bawa (2021) N8946
Moka v Motor Vehicles Insurance Ltd (2001) N2098
Motor Vehicles Insurance Limited v Kol (2007) SC902
Takura v Motor Vehicles Insurance Ltd (2010) N4105
Toropo v Awabe (2001) N2116

Legislation:
Judicial Proceedings (Interest on Debts and Damages) Act 2015: Sections 4, 5, 6
National Court Rules: Order 12 r.6

Counsel
Mr Solomon Wanis, for the Plaintiff
Mr Frederick So, for the Defendant

DECISION

6^th December 2023

1. SHEPHERD J: The plaintiff, Rex Paraka, has sued the Motor Vehicles Insurance Trust (MVIL) for personal injuries he sustained as a result of being struck by a bus. Default judgment was entered against the MVIL on 21 September 2020 with damages to be assessed. This decision is the Court’s assessment of the quantum of damages to be awarded to the plaintiff.

THE INCIDENT

2. The facts relating to the circumstances which gave rise to the plaintiff’s personal injuries and the medical evidence in respect of those injuries are not in dispute. The plaintiff is a subsistence farmer with no formal education who comes from Kongomul Village in the Nebilyer district of Western Highlands Province. At about 7:00 pm on 18 May 2018 the plaintiff was walking on the side of the Mt Hagen-Mendi highway near the Pup bridge in the Nebilyer district at about 7:00 pm when he was struck by a public motor vehicle (PMV) bearing registration no. P.2786. The PMV was owned by Leoni Kara. The driver at the material time was Mike Kantipa, who had been driving at high speed under the influence of alcohol. The bus veered off the road at a point close to the Pup bridge and collided with the plaintiff. The impact caused the plaintiff to be flung to the side of the road, fracturing his right leg and causing multiple injuries. He was rendered unconscious and was taken in a comatose condition to Mt Hagen Provincial Hospital’s emergency ward the same evening. Two days later the plaintiff was admitted to the hospital’s surgical ward on 20 May 2018 where he was attended to by orthopaedic surgeon Dr Jacob Painui.

MEDICAL EVIDENCE OF THE PLAINTIFF’S INJURIES

3. Dr Painui’s medical report dated 18 June 2018 indicates that the plaintiff regained consciousness soon after his arrival at Mt Hagen Provincial Hospital on 18 May 2018 and that the plaintiff’s physical injuries at that time were these:
   • the right leg had a laceration and was grossly swollen and deformed, with an X-ray showing a fracture of the tibia and fibula of the right leg.
   • laceration on the left side of the forehead
   • painful neck, which resolved itself on subsequent examination
   • multiple abrasions on the abdomen
   • pain and tenderness in the chest, which developed into shortness of breath with a low oxygen saturation rate of 90%.
   • air entry into both lungs was reduced indicating contusion of the lungs, however this was able to be conservatively managed.
4. Dr Painui’s medical report of 18 June 2018 stated that the plaintiff’s injuries were managed with intravenous fluids, oxygen, antibiotics, analgesics and regular observations. The plaintiff underwent surgery at the hospital on 23 May 2018, at which time the open fracture in the right leg was cleaned and external fixators applied to stabilize the fracture.
5. A month later the plaintiff was still an in-patient at Mt Hagen Provincial Hospital but he was in a stable condition following his surgery on 23 May 2018. Dr Painui said in his medical report dated 18 June 2018 that the external fixators to the plaintiff’s right leg would be removed and a plaster of paris cast applied to the fracture site before the plaintiff would be discharged from the hospital.
6. The plaintiff was discharged from Mt Hagen Provincial Hospital shortly after Dr Painui’s medical report of 18 June 2018. He returned to Kongomul Village where he remained on medication.
7. The plaintiff presented himself for medical review by Dr Painui at Mt Hagen Provincial Hospital almost a year later on 4 April 2019.
8. Dr Painui’s second medical report in respect of the plaintiff’s injuries is dated 10 May 2019. Dr Painui stated in his second medical report that when he examined the plaintiff’s injuries he made the following observations:
   • the plaintiff was walking with a normal gait and the length of both legs was normal
   • the right leg was deformed at the fracture site but was not tender
   • the plaintiff’s range of movements involving the hip, knee and ankle joints were good
   • the left knee was not swollen but the medial joint line and the medial tibial joints were tender or painful on pressure
   • the left wrist and distal radio-ulna joint were tender, with wrist joint movements good except for extension of the left wrist which was restricted by about 20%.
   • motor and sensory functions involving the upper and lower limbs were good.
   • functional tests involving the left wrist and left arm were normal but functional tests involving the right leg were mildly restricted.
   • there was no neurological deficit.
9. Dr Painui concluded his second medical report by stating that at time of examination on 4 April 2019 Mr Paraka had recovered well but that the pain in the plaintiff’s left knee and left wrist could persist. The development of osteoarthritis involving those joints could not be ruled out. Dr Painui assessed the plaintiff’s injuries as April 2019 as being in the vicinity of a 19% loss in the use of the left arm, left wrist and the left leg.
10. The plaintiff’s recuperation from the personal injuries he sustained on 18 May 2018 were the subject of further review, this time in September 2021 by Dr Allan Kulunga of Kintip Surgery Ltd, Mt Hagen WHP. Dr Kulunga states in his medical report dated 16 September 2021 that on examination the plaintiff complained of pain in his left wrist during active use as well as pain and weakness in his left knee when walking long distances and when walking up and down stairs and hills. The plaintiff said to Dr Kulunga that this pain made it difficult for him to engage in heavy manual work and carrying of loads. Dr Kulunga indicated in his medical report to the effect that although the fracture of the plaintiff’s right tibia had healed, the healing process had caused the plaintiff’s right leg to lengthen by 1 centimetre, although this had not produced any significant impediment to the plaintiff’s gait. However, Dr Kulunga considered that the plaintiff had sustained a 15% permanent disability in the use of his left knee and a 5% permanent disability in the use of his left wrist^[1] in terms of post-traumatic arthrosis, which is a form of osteoarthritis or inflammation of the joints. The MVIL paid for Dr Kulunga’s medical report.

ISSUES

11. The MVIL’s liability has already been determined by the default judgment that was entered against it in this proceeding on 21 September 2020. The default judgment has not been contested by the MVIL. However, what is very much in dispute is the quantum of the damages to which the plaintiff is entitled as a result of the personal injuries he sustained.
12. The issues for determination by the Court are clearly pleaded in the plaintiff’s amended statement of claim filed on 12 June 2020. Apart from his legal costs, the plaintiff seeks compensation for his personal injuries by way of:

(1) general damages

(2) special damages - past medical and related expenses

(3) past economic loss

(4) future economic loss

(5) future medical expenses

(6) interest on damages at the rate of 8%.

13. I will address each of these heads of damages as separate issues.

ISSUE 1 – GENERAL DAMAGES

14. It is a basic principle of tort law that a person who is injured by another person’s wrongful conduct is entitled to general damages. When assessing general damages for personal injuries, the Court endeavours to award such amount as will fairly compensate the injured person for his or her pain, suffering and loss of amenities: Kerr v MVIT [1979] PNGLR 251. There is no fixed mathematical formula for assessing these components of general damages.
15. Counsel for the plaintiff submitted at trial on assessment of damages^[2] that a proper award for general damages for the plaintiff in this instance would be K50,000. Counsel cited two reported cases in support of this submission: Kolokol v Amburuapi (2009) N3571 (Cannings J) and a much earlier case, Roth v Ok Tedi Mining Ltd (1998) N1788 (Jalina J).
16. The plaintiff in Kolokol’s case was awarded general damages of K25,000. The medical evidence in that case indicated that the plaintiff had sustained an estimated 20% effective loss of function of the left leg and 10% permanent loss of cosmetic appearance due to scarring at the base of the leg.
17. I observe that in the present case the plaintiff’s injuries occurred in May 2018 and were assessed by Dr Painui almost a year later in April 2019 as being in the vicinity of a 19% loss in the use of the left arm, left wrist and left leg. That assessment was reviewed by Dr Kulunga in September 2021, shortly before trial on 6 December 2021, at which time Dr Kulunga observed that the plaintiff’s injuries to his right leg had largely healed but that the plaintiff was left with a 15% permanent disability in the use of his left leg and a 5% permanent wrist injury.
18. Counsel for the plaintiff submitted that in view of the medical evidence, a doubling of the award of general damages of K25,000 for comparable injuries suffered by the plaintiff in the Kolokol’s case to K50,000 would be reasonable if the Court were to take into account inflation and the corresponding decrease in the purchasing power of the Kina which has occurred in the intervening 12 to 13 years subsequent to when Kolokol was decided in 2009.
19. The only other case as to quantum of general damages relied on by counsel for the plaintiff in this suit was, as mentioned above, the case of Roth v Ok Tedi Mining Limited. Counsel informed the Court that the plaintiff in Roth’s case had supposedly been awarded general damages of K25,000 for a knee injury which was said to have resulted in a 20% to 30% permanent loss of function.
20. I have reviewed Roth’s case and find that it has little or no bearing on the circumstances of the present case. The plaintiff in Roth’s case was an expatriate Australian electrician who fell from a ladder in an employment-related incident which occurred many years ago, back in 1989, when he was working in Papua New Guinea. Mr Roth sustained a very serious injury to his left knee which required extensive surgery and physiotherapy in Queensland. The injury substantially diminished Mr Roth’s capacity to work. He sued his employer in negligence for failing to provide a safe system of work and for breach of statutory duty under industrial safety legislation. Mr Roth was medically assessed at trial in 1996 as having an overall permanent loss of 15% function of the left knee, leaving him unable to fully pursue his occupation as an electrician. He was no longer able to squat or to play sports, his domestic life had been disrupted and further knee surgery was likely. Judgment N1788 states in its summary on page 5 that Mr Roth was awarded $38,600 (sic) for pain, suffering and loss of amenities. In addition to general damages of $38,600, he was also awarded $149,953.28 for past loss of income, $80,000 for future loss of income and out of pocket expenses of $1,423.56. The total of the various heads of damages which were awarded to Mr Roth for his claim came to $269,976.84. The Judgment does not indicate whether the damages were payable in Australian currency or PNG Kina. However, irrespective of the confusion which the absence of that explanation creates and in the absence of any evidence as to what $36,600 (presumably in Australian currency) may have been worth in Kina when Mr Roth’s case was decided in 1998, it is clear that counsel for the plaintiff in the present case was mistaken when he submitted that Mr Roth was awarded general damages of K25,000 in 1998. I am at a loss to understand why counsel for the present plaintiff thought that Roth’s case has any bearing at all, more than 23 years later, on the present assessment of damages for the plaintiff in WS No. 108 of 109.
21. In answer to the submissions on general damages made for the present plaintiff, counsel for the MVIL directed the Court’s attention to comparable cases where general damages were awarded that are said to have more relevance to a claim where permanent injuries sustained by a plaintiff have resulted in a 15% permanent loss of bodily function, especially where proportionality of permanent disability and inflationary factors are taken into account.
22. In Toropo v Awabe (2001) N2116 (Hinchliffe J) the plaintiff was awarded general damages of K9,500 for pain, suffering and loss of amenities which he suffered as a result of a compound fracture of the tibia in his right leg and attendant bruising. The plaintiff had sustained his injuries in a motor vehicle accident which occurred in July 1999. The medical report of the surgical registrar at Mount Hagen Hospital prepared in November 1999 indicated that the plaintiff was estimated to have lost between 10% to 15% of the normal function of his right leg.
23. In Moka v Motor Vehicles Insurance Ltd (2001) N2098 (Kandakasi J, as he then was) the facts were that the plaintiff had sustained a fracture in the left leg, with a head injury and lacerations to his face, left wrist and hand and left thigh, when he was struck by a motor vehicle in July 1996. The medical evidence established that the plaintiff’s lacerations had healed relatively quickly but the plaintiff’s head injury took longer for full recovery to occur. By May 2000 the plaintiff’s main disability was an estimated 40% permanent loss of efficient use of the left leg. He was awarded general damages of K23,000, based on a range of K15,000 to K20,000 for earlier comparable awards and a further allowance to offset inflation to bring the total award of general damages to K23,000.
24. In Takura v Motor Vehicles Insurance Ltd (2010) N4105 (Cannings J) general damages of K30,000 were awarded where the plaintiff had suffered a fracture of the right humerus resulting in an estimated permanent loss of 40% efficient use of the right shoulder, arm and hand due to pain and weakness. The motor vehicle accident in which the plaintiff was injured occurred in November 2000. The plaintiff’s writ was issued in 2006. The trial took place in September 2009. The Court’s decision was delivered in April 2010.
25. Counsel for the MVIL also relied on Kolokol’s case, which is the primary case relied on for the plaintiff for guidance on the quantum of damages to be awarded in this suit. Counsel for the MVIL referred the Court to the following passage from Cannings J’s decision, where His Honour said this at paras. 20 and 21:

“ GENERAL DAMAGES

20. This is intended to compensate the plaintiff for the pain and suffering, inconvenience, partial loss of use his leg and other losses that have to be endured by anyone who suffers this sort of injury. Makail AJ recently reviewed awards of general damages for these sorts of cases in Ngants Topo v The State (2008) N3478. The plaintiff suffered a 65% loss of function of a leg, following a bridge collapse. His Honour awarded him general damages of K30,000.00. In a recent Madang case, Milia Yongole Kuri v Walter Kapty & NHC, WS No. 1775 of 2004, 20.02.08, I awarded K50,000 general damages to a woman who suffered at 45% loss of function of a leg after it was broken when she fell though the floor of her rented house, the incident being due to the negligent failure of the landlord to repair the property.

21. Here, the plaintiff’s injury is not as severe as in those cases and he should be awarded a lower amount. However, I think the court has to be careful that it does not treat cases such as the present as ‘not very serious’ in view of the relatively low percentage loss of functionality of the plaintiff’s leg. He has suffered a permanent injury , which interferes with his ability to partake in sporting activities. For any person, particularly a young man like him (he is now aged 20, doing a hospital management course at Divine Word University) this is a major setback in life. I will award K25,000.”

26. Counsel for the MVIL agreed with counsel for the plaintiff that Kolokol’s case is relevant in the present instance because the permanent loss of functionality which Mr Kolokol suffered to his left leg is akin to that which has been suffered by the plaintiff in this suit. However, counsel for the MVIL has contended that the quantum of general damages of K25,000 awarded in Kolokol’s case in 2009 should be increased by a factor of only 30% so as to allow for subsequent inflation to the time of trial in 2021, not doubling by a factor of 100% as was submitted for the plaintiff. Counsel for the MVIL relied in support of an inflation factor of 30% to the recent case of Martin v Bawa (2021) N8946 where Makail J said this at para. 27 when considering the impact of inflation on prior awards of general damages:

“ 27. The plaintiff also submitted that the sum to be awarded should include inflation as was held in Lapune Aine v The State (2011) N4389 to cover for the increase in the costs of goods and services over the last 10 to 12 years since the police raid in 2009. A rate of 30% inflation was adopted. I accept this submission.”

27. I agree with counsel for the MVIL and accept that an inflation factor of 30% is an appropriate percentage to be applied to awards of general damages for comparable personal injuries made 10 to 12 years ago. I note that no evidence was adduced by the plaintiff in this proceeding as to the rate of increase in inflation in PNG’s economy which has taken place between 2009, which is when Kolokol’s case was decided, and when the present plaintiff’s trial on assessment of damages took place in December 2021. In the absence of that evidence, the Court’s only recourse is to refer to what other Judges have considered to be an appropriate factor to be applied to awards of damages to offset the impact of inflation over a similar period of 10 to 12 years. This is the significance of Martin v Bawa and case law referred to therein.
28. If the award of general damages of K25,000 in Kolokol’s case is increased by a factor of 30% to allow for inflation, this would result in an amount of K32,500 as at date of trial in December 2021, an increase of K7,500. As a further two years have elapsed since trial, I consider that an additional amount of K2,500 is warranted to offset the impact of intervening inflation since trial. The plaintiff is accordingly awarded general damages of K35,000.

ISSUE 2 - SPECIAL DAMAGES

29. The plaintiff has sought unquantified special damages for past medical and related expenses in his amended statement of claim. No particulars of those special damages were pleaded and no evidence of past medical and associated expenses incurred by the plaintiff was furnished at trial as to the monies which the plaintiff had to spend on medical, pharmaceutical and related expenses he incurred when he was an in-patient at Mt Hagen Provincial Hospital in May 2018 and later during the period of his recuperation after his discharge from hospital in June 2018. There would also have been the cost of the plaintiff’s return travel from his village to the hospital for check-ups and the professional fees charged by Dr Painui for his two medical reports.
30. Although no evidence of the plaintiff’s medical and related expenses was adduced at trial, the MVIL by its counsel acknowledged in his written submissions that the plaintiff had already furnished the MVIL with copies of receipts for his medical reports and related expenses. It was submitted for the MVIL that the Court should award the plaintiff the sum of K1,500 for his out-of-pocket medical expenses. As the MVIL has conceded that amount, the plaintiff is accordingly awarded special damages for his medical and related expenses in the sum of K1,500.

ISSUE 3 – PAST ECONOMIC LOSS

31. The principles which guide the Court when assessing past and future economic loss in personal injuries cases are well settled. This is what the Supreme Court said in Motor Vehicles Insurance Limited v Kol (2007) SC902 (Kandakasi J as he then was, Lenalia and David JJ) at para. 26:

“ 26. ... 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 of the plaintiff’s income earning capacity to support him or herself and his or her dependants. ”

32. Here the plaintiff’s evidence as to his loss of income is set out in the following paras. 14 to 21 of his affidavit filed on 8 October 2020:

“ 14. I was and still am unable to return to my normal subsistence farming life after the accident.

15. I have two wives and 5 children, all of whom are attending various primary and secondary schools in the Nebilyer district, WHP.

16. I support my family through farming produce that I sell along the roadside markets. I sell garden produce like pineapple, kaukau, banana, corn, peanut, pumpkin, sugarcane and vegetables.

17. The markets are known as ‘Pineapple market’ and ‘Kaukau market’ located at the side of the highlands highway in Nebilyer and the travelling public, especially Hela and SHP passengers provide good demand for the local produce.

18. I earn about K10,000.00 in a year from the sales and support my family. This income has dramatically dropped or even stopped from the time of the accident.

19. I am solely responsible for building traditional houses for my two wives and slashing bushes and digging drains for our subsistence living. These are now things of the past due to the injuries I received from the MV accident.

20. I do assist my wives in farming but I do not do the following heavy jobs:

a. Digging big drains for a whole day long as I used to do. I do small drains for at least 2 hours but do not go further as I loose grip on spade handles and my knees become painful.

b. I am unable to chop big trees in a day for building houses for my wives. It takes me up to three days to fell off big trees.

c. I am unable to carry big loads of food bags to the nearest markets for sales. My two big sons have taken over most of these heavy jobs but sometimes they do not turn up.

21. Thus, the accident has affected the way of my farming life and my two wives by realising this they have stopped doing big plots of gardens as we used to do in the past. This in turn has reduced our income.”

33. The plaintiff has then set out in his affidavit details of the differing sale prices of K100, K300, K400 and K600 per month which pre-accident he was able to generate on a monthly basis from the sale of kaukau, pineapples, three different varieties of bananas, peanuts, pawpaw, pumpkin, and other vegetables which were planted and harvested in his family’s market gardens and then sold at roadside markets at Nebilyer, WHP. He says that he used to earn at least K10,350 per year from these sales.
34. The plaintiff deposes in his affidavit to the effect that he lost almost a full year of income from the sale of his gardening produce while he was recovering from the injuries he sustained in the motor vehicle accident in May 2018 up until his second medical examination by Dr Painui in April 2019. He says that thereafter his ability to work in his gardens, even though assisted by his two wives, has been significantly reduced because of the continuing pain he experiences in his left knee and left wrist.
35. The plaintiff’s evidence as to the diminution in his post-accident ability to carry out his pre-accident subsistence farming activities is corroborated by his two wives. I refer in this regard to the affidavit of the plaintiff’s first wife Mrs Mendi Paraka and the affidavit of the plaintiff’s second wife Mrs Aklena Paraka, both affidavits having been filed on 8 October 2020. Each of the plaintiff’s wives depose to the effect that the plaintiff is unable to dig large drains anymore, whereas before he sustained his injuries he was able to effectively do this labour-intensive work. The wives both say that when the plaintiff now assists them in their family gardens, he loses grip on spade handles after about 2 hours of digging because of the pain he experiences in his left knee and left arm. The wives each depose to the effect that the plaintiff cannot carry heavy loads anymore and that it now takes him up to 3 days to fell trees used in the construction of their bush material houses. This has resulted, the wives say, in a reduction of their day-to-day family income from sale of garden produce because the plaintiff is not able to be as productive as he was before he sustained his injuries.
36. The plaintiff seeks K10,350 on account of his past loss of income for the year when he was incapacitated from working in his gardens and was unable to generate any income at all that year from his own physical labour.
37. I observe that at the trial on assessment of damages, the MVIL opted not to adduce any evidence to rebut the plaintiff’s affidavit evidence as to his income earning abilities as a subsistence farmer or how those abilities were curtailed or otherwise affected and will continue to be affected by the personal injuries which he sustained. If the MVIL considered that the evidence of the plaintiff and his two wives was not credible and required rebuttal, the MVIL could have obtained its own affidavit evidence from other sources, such as persons at Kongomul Village and from further medical specialists, to challenge the plaintiff’s evidence as to the long-term impact which his personal injuries have had on his life and on his ability to earn income. The MVIL elected to adduce no evidence in rebuttal at all.
38. I therefore consider it disingenuous for counsel for the MVIL to have contended at para. 25 of his written submissions that there should be no award of past economic loss because the plaintiff had allegedly failed to produce any evidence to establish his loss. It is in fact the reverse. It is the MVIL who failed to adduce any evidence to challenge the Plaintiff’s evidence as to his past loss of income due to his personal injuries.
39. I therefore accept the credibility of the plaintiff’s evidence as to loss of monthly income for the year that he was unable to do any market gardening work as a subsistence farmer. The amounts he has claimed for the proceeds of sale of vegetables and fruits when projected over a period of a year and totalling K10,350 and which proceeds of sale he says were lost as a result of his incapacity to work because of his personal injuries are in my view entirely credible.
40. However, what the plaintiff, or rather his counsel, has not taken into account when calculating the plaintiff’s own loss of income for that year is that before the plaintiff sustained his personal injuries, his two wives assisted him in their family gardens to cultivate the market garden produce that generated the approximate amount of K10,350 per year from roadside sales.
41. There was no evidence adduced for the plaintiff to indicate what the estimated contribution of the plaintiffs’ two wives own labour might have been which enabled the plaintiff to obtain an annual income of about K10,350 from the roadside market sales of their produce. However I consider it reasonable to assume that the joint contribution which the plaintiff’s wives would have made through their own labour in assisting the plaintiff in the planting and harvesting of produce from their family gardens before the subject accident in May 2018 would have been in the vicinity of 20%, or about 10% each. This contribution of the wives’ labour should, in my opinion, be reflected in any estimation of the plaintiff’s pre-accident annual income of about K10,350. I take the view that a more realistic estimation of the plaintiff’s own past economic loss for the period of his recuperation should take into account a deduction for the contribution towards generating the plaintiff’s income which his two wives would otherwise have made had the plaintiff not been fully incapacitated from working in their family gardens for a period of almost a full year.
42. I therefore assess the plaintiff’s claim for past loss of income from his subsistence farming activities for a period of almost one year following the subject accident in May 2018 at K8,280. This amount is calculated by deducting K2,070, being 20% of K10,350, to allow for the wives’ contribution from the initial estimate of the plaintiff’s past loss of income of K10,350 for that year.
43. The plaintiff is accordingly awarded the sum of K8,280 for his past loss of income for the year that he was unable post-accident to engage in his usual subsistence farming activities.

ISSUE 4 – FUTURE ECONOMIC LOSS

44. The plaintiff by his counsel has sought a lump sum award of K21,750 to compensate the plaintiff for future economic loss. This amount is based on a submission that the plaintiff’s 15% diminution in the efficient use of his left leg and 5% loss of efficient use of his left wrist affecting his left arm has resulted in a notional loss of the plaintiff’s income from the sale of his garden produce of about K4,350 per year, which has then been projected over a period of 5 years to give a total estimated future economic loss of K21,750.
45. Counsel for the MVIL submitted in response that the Court should only award the plaintiff a nominal amount of K1,000 on account of future economic loss. Counsel argued that there is no evidence, alternatively insufficient evidence, to justify an award under this category of damages. Counsel for the MVIL urged the Court to find that the plaintiff’s claim for future economic loss is based on guess work that is unreasonable and excessive and that the very most that the plaintiff should be awarded for future economic loss should not exceed K1,000.
46. The evidence for the plaintiff as to his loss of future income is based on his affidavit material as to the money he was earning from the sale of his market gardening produce prior to the injuries which he sustained in the subject accident in May 2018. The plaintiff’s evidence in this regard was corroborated by the affidavits of his two wives. I have already found that the plaintiff’s evidence as to his pre-accident income was not exaggerated and is credible, subject only to a deduction of about 20% being made for the contribution towards that income made by the plaintiff’s wives through their own labour when working in the family’s market gardens.
47. The plaintiff’s evidence in support of his claim for future economic loss establishes that he was aged 47 years when he was injured in the subject motor vehicle accident. He was 51 years of age at trial. It is contended that but for the 15% permanent loss of the efficient use of his left knee and 5 % permanent loss of the efficient use of his left wrist and arm as assessed by Dr Kulunga, the plaintiff would at trial have had a remaining fully active life of subsistence farming of a further 9 or 10 years to age 60 or 61. The plaintiff’s own evidence is that because of the persistence of the ongoing pain he experiences in his left knee and his left arm and wrist, he has a reduced capacity work in his gardens which will continue into the future for an indefinite period. He also faces the possibility of onset of arthrosis or osteoarthritis in both legs and in his left arm as he grows older.
48. This is what the plaintiff says at paras. 29 to 33 of his affidavit regarding his future loss of income:

“ 29. I am now about 50 years ... and my remaining active life of subsistence farming is 10 years.

30. Due to the above status of my injuries, my active life of subsistence farming is reduced to 5 years.

31. My loss of active life in the other lost 5 years may not completely stop me from subsistence farming but the size of farming has resulted in a reduced income – I am likely to generate K6,000.00 in a year during those lost 5 years of reduced subsistence family life.

32. Because my yearly income [was] K10,350 I will lose K4,350 in each of those five years of reduced active farming life.

33. Thus, I will lose K21,750 in the future five years of my reduced family life due to the injuries. ”

49. I accept the genuineness of the plaintiff’s evidence as to the reduction in his capacity to earn future income from his subsistence farming activities. The plaintiff says that his average annual income has dropped from about K10,350 to around K6,000 a year, a difference of about K4,350 per year, and that the cause of this is the pain he continues to suffer in his left leg and left arm which prevents him from being able to fully engage in his subsistence farming activities when compared to what he was able to do before the subject accident.
50. The MVIL, when alleging by its counsel that the plaintiff has grossly exaggerated his claim for future economic loss, relies on the case of Martin v Bawa (supra) where Makail J rejected the evidence of the plaintiff as to his alleged future loss of income. His Honour dismissed the plaintiff’s evidence in this regard because he found that the amount claimed for future economic loss of K4,543,000 was ridiculous, astronomically excessive and bore no relation at all to the modest income that could be expected to be generated by the plaintiff’s small scale business operations, which his Honour described as a tucker-shop, dart competition and poultry business.
51. Martin v Bawa can be readily distinguished from the present case on the facts. In the present instance I find that the plaintiff’s evidence as to his loss of future income of about K4,350 per year is not exaggerated and is credible. I say this bearing in mind Dr Kulunga’s prognosis regarding the plaintiff’s permanent disabilities. I find that the plaintiff’s medically proven loss in bodily function will continue to impact on his capacity to earn future income.
52. The plaintiff has asked that his claim for future economic loss be projected over a period of 5 years. This is a reasonable request for a reasonable period. It is not as if the plaintiff is asking the Court to project his future economic loss for 10 or more years.
53. I accordingly make a preliminary calculation of the plaintiff’s future economic loss based on an estimate of K4,350 per year projected over a period of 5 years. I then discount that amount by 20% to allow for the contribution made by the plaintiff’s two wives towards the current and future sales of the plaintiff’s market garden produce through their own labour and then deduct a further 5% for what is conventionally called the vicissitudes of life to allow for potentialities such as the early death of the plaintiff or the possibility that there could be some unforeseen but limited improvement in the future healing process for the plaintiff’s lower limbs and left arm.
54. The final calculation as to the plaintiff’s allowable claim for future economic loss comes to K16,530 and is calculated as follows:

K4,350 x 5 years = K21,750 – 20% on account of wives’ contribution to labour = K17,400 – (5% of K17,400) = K17,400 – K870 = K16,530.

55. I do not propose to apply the usual 3% compound interest table to this figure as the plaintiff is not seeking compensation for future economic loss projected over a lengthy period and the amount by which a total allowable amount of K16,530 could be further discounted through the use of the compound interest table at a rate of 3% projected over 5 years is negligible.
56. For the reasons I have given, the plaintiff is awarded the sum of K16,530 for his claim for future economic loss.

ISSUE 5 – FUTURE MEDICAL EXPENSES

57. There was no evidence adduced for the plaintiff at trial as to any likely future medical expenses he might incur such as the cost of further medical reviews or further physiotherapy. Counsel for the plaintiff did not press for any nominal amount to be awarded by the Court to the plaintiff under this head of damages.
58. I therefore agree with counsel for MVIL that it would be inappropriate for the Court in these circumstances to award any amount of damages for the plaintiff’s estimated future medical expenses as there was no evidence led for the plaintiff in support of this issue and no submission was made for the plaintiff that even a nominal or gratuitous amount should be assessed for future medical expenses, despite what was pleaded in the plaintiff’s amended statement of claim. I accordingly disallow the plaintiff’s claim for future medical expenses.

ISSUE 6 – INTEREST ON DAMAGES AT THE RATE OF 8%

59. The plaintiff in his amended statement of claim seeks an award of interest on his various heads of damages at the rate of 8%, which I infer means interest at the rate of 8% yearly (per annum).
60. Section 4 of the Judicial Proceedings (Interest on Debts and Damages) Act 2015 (the Act) gives the Court a wide discretion to award interest. Section 4(1) of the Act states:

4(1) Subject to Section 5, in proceedings in a court for the recovery of a debt or damages, the court may order a rate as it thinks proper to be applied to the sum for which judgment is given interest, on the whole or part of the debt or damages for the whole or part of the period between the date on which the cause of action arose and the date of the judgment.

61. Section 5(1) of the Act states that nothing in Section 4(1) authorises the awarding of interest on interest. In other words, Section 4(1) does not per se authorise a Court to award compound interest. If compound interest on any debt or component of damages is to be awarded by a court, the parties must have agreed to such an arrangement or there must be some lawful source other than Section 4(1) for compound interest to be imposed up to the time of judgment. There is no issue in the present case that compound interest should apply to any of the plaintiff’s allowable claims for damages.
62. As to post-judgment interest, this is governed by s.6 of the Act which states:

6(1) Subject to Subsections (2) and (3), where judgment is given or an order is made for the payment of money, interest, shall, unless the court otherwise orders, be payable at the prescribed rate from the date when the judgment or order takes effect on such of the money as is, from time to time, unpaid.

63. The rate prescribed by s.4(2) and s.6(2) of the Act for pre-judgment and post-judgment interest on money judgments against the State is 2% yearly. However the Act is silent as to the rate prescribed for pre-judgment and post-judgment interest on money claims where the judgment debtor is a party other than the State.
64. I am mindful that Order 12 r.6 of the National Court Rules (NCR) states that where the Court directs the entry of judgment for the payment of money and makes an order for the payment of interest under the Act, interest shall, unless the order otherwise provides, be payable on so much of the judgment money as is from time to time unpaid at the rate of 8% yearly. This rate prescribed by the NCR clearly applies to both pre-judgment and post-judgment monies that are owing where the defendant is not the State, but the rate is discretionary. The Court can impose some other rate of interest if it can be satisfied that it should do so in the particular circumstances of the case.
65. Counsel for the MVIL in his written submissions did not raise any issue as to whether the MVIL is the State for the purposes of s.4(2) and s.6(2) of the Act. Indeed, in his oral submissions, counsel for the MVIL agreed with counsel for the plaintiff that an interest rate of 8% yearly, which is the conventional rate of interest applied to damages claims other than damages claims against the State, is an appropriate rate of interest for the Court to apply to the allowable heads of damages to be awarded to the plaintiff in this proceeding
66. Recent case law on interest on damages indicates that the Courts are in most cases continuing to apply the conventional rate of interest of 8% yearly referred to in Order 12 r.6 NCR on damages ordered to be paid by defendants other than the State: see for example Aiwara v. Cocoa Board of PNG (2017) N6788 (Anis AJ, as he then was); Albert v Aine (2019) N7772 (Kandakasi DCJ); Bagu v Motor Vehicles Insurance Limited (2023) N10111 (Makail J).
67. I see no reason to depart from the conventional rate of interest in the present case in respect of the allowable heads of damages claimed by the plaintiff, particularly because counsel for the MVIL concurred with counsel for the plaintiff that the appropriate rate of interest to be applied by the Court in this instance is 8% yearly.
68. As to the period for which pre-judgment interest of 8% yearly should be applied, I consider that the appropriate period is from the date when the plaintiff’s cause of action arose through to the date of this judgment. The evidence establishes that the plaintiff’s cause of action accrued on 18 May 2018 which is the date on which the plaintiff sustained his personal injuries when, as a pedestrian, he was struck by the PMV driven by Mike Kantipa.
69. Interest is awarded to compensate a claimant for being kept out of money that ought to have been paid much earlier but where payment has necessarily been delayed pending determination by a court of the quantum of damages to which the claimant is entitled. It therefore follows that interest is not payable on those heads of damages awarded by a court which compensate a claimant for future economic losses as such damages, when paid by a defendant, can be invested in a financial institution by a plaintiff and thereby independently obtain interest.
70. In the present case, the plaintiff’s damages awarded for past losses come to a total of K44,780 comprised by:

General damages for pain, suffering and loss of amenities: K 35,000
Special damages – past medical and related expenses: K 1,500
Past economic loss: K 8,280

Total of damages for estimated past losses: K 44,780

71. Pre-judgment interest on total damages of K44,780 for past losses will therefore be calculated at the rate of 8% from date of accrual of the plaintiff’s cause of action on 18 May 2018 to the date of this judgment, 6 December 2023, a period of 5 years 6 months and 18 days or 2028 days, by applying the formula D x IR x (N/365) = I, where: D is the total amount of damages, IR is the applicable percentage rate of interest per annum, N is the number of days expressed as a percentage of years and I is the amount of interest. Pre-judgment interest is therefore K19,904 computed as follows:

K44,780 x 8% x (2028/365 days) = K19,904

72. Post-judgment interest will accrue at the same rate of 8% yearly on K44,780, being the aggregate of the damages for past losses, as may from time to time remain unpaid by the MVIL, This is because s.5(1) of the Act does not allow the Court in this instance to award post-judgment interest on the pre-judgment interest component of K19,904.

SUMMARY OF DAMAGES AWARDED

73. The total of the judgment inclusive of pre-judgment interest which is to be awarded to the plaintiff in this suit is K81,214 computed as follows:

General damages: K 35,000
Special damages – past medical and related expenses: K 1,500
Past economic loss: K 8,280

Total of damages for estimated past losses: K 44,780

Pre-judgment interest on total of past economic loss
at 8% yearly for period 18.05.2018 to 06.12.2023: K 19,904

Future economic loss: K 16,530

Total of Judgment: K 81,214

COSTS

74. The general rule is that costs follow the event, which is to say that the successful party has its legal costs paid by the losing party calculated by reference to the scale of party/party costs set out under Table 1 of Schedule 2 NCR.
75. Counsel for the plaintiff indicated in his written submissions that costs should follow the event. Counsel for the MVIL left the question of costs to the discretion of the Court.
76. Costs will therefore follow the event and, subject to interim orders as to costs already made in this proceeding, are awarded on a party/party basis.
    

FORMAL JUDGMENT

77. The formal judgment of the Court is as follows:

(1) Judgment is entered for the Plaintiff in the sum of K 81,214 comprising:

(a)	General damages for pain and suffering:	K 35,000
(b)	Special damages – past medical and related expenses:	K 1,500
(c)	Past economic loss:	K 8,280
(d)	Pre-judgment interest:	K 19,904
(e)	Future economic loss:	K 16,530
	Total of Judgment:	K 81,214

(2) Post-judgment interest shall accrue at the rate of 8% yearly on so much of the sum of K44,780, being the aggregate of the above general damages, special damages and past economic loss, as remains from time to time unpaid.

(3) Subject to existing interim orders as to costs, the Defendant shall pay the Plaintiff’s costs of this proceeding on a party/party basis, such costs to be taxed if not agreed.

(4) The time for entry of this Judgment is abridged to the time of signing by the Court which shall take place forthwith.

Judgment accordingly
________________________________________________________________
Solomon Wanis Lawyers: Lawyers for the Plaintiff
Ketan Lawyers: Lawyers for the Defendant

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^[1] Dr Allan Kulunga concluded his medical report dated 16 September 2021 by stating that the plaintiff has sustained a 5% permanent disability in the use of his right wrist joint, not his left wrist joint. However Dr Kulunga’s prognosis in the immediately preceding paragraph in his medical report refers to the plaintiff’s injury to his left wrist, which is consistent in that regard with Dr Painui’s two medical reports. It can therefore be assumed that Dr Kulunga’s reference in his concluding observations as to the plaintiff’s right wrist was inadvertent and that Dr Kulunga intended to have referred to the plaintiff’s left wrist. In any event, there is adequate medical evidence to establish that the plaintiff’s injuries included an injury to his left wrist joint, not his right wrist joint. There is no medical evidence to suggest that there was any permanent injury to the plaintiff’s right wrist joint.
^[2] Further references in this decision to the trial on assessment of damages are abbreviated to “the trial”.