Warahuli v Tibong [2025] PGNC 68; N11192 (19 March 2025)

N11192

PAPU NEW GUNIEA
[NATIONAL COURT OF JUSTICE]

WS NO. 922 OF 2016

BETWEEN:
JENNY WARAHULI
Plaintiff

AND:
STANIS TIBONG
First Defendant

AND:
CHRIS BAIS-CEO EXECUTIVE OFFICER -PNG POWER LTD
Second Defendant

AND:
PNG POWER LTD
Third Defendant

MADANG: NAROKOBI J
15 OCTOBER 2024; 19 MARCH 2025

DAMAGES – Negligence –Personal Injuries- Appropriate Awards for Each Category of Damages Considered and Awarded.

The Plaintiff was electrocuted by a low hanging powerline. She suffered permanent injuries as a result. Liability was established against the Third Defendant, and she now claims damages under various categories, being damages for negligence, general damages, special damages, interests and costs.

Held:

(1) The separate claim of damages for negligence for K100,000.00 is refused. General damages is the usual award occasioned by the negligence of a tortfeasor.

(2) Taking into account comparable cases such as Kari v PNG Power Ltd (2025) N11146, general damages was awarded at K80,000.00, as the Plaintiff suffers 50% loss of life enjoyment from the neurologic and psychological sequelae of electrical injury, which according to medical report are persistent and affects the Plaintiff greatly.

(3) Special damages of K50,000.00 is awarded having regard to Jonathan Mangope Paraia v The State (1995) N1343 on the basis that the Plaintiff incurred costs traveling to Port Moresby and Kavieng for specialists medical attention.

(4) No award for exemplary damages is made.

(5) A total damages of K130,000.00 is awarded, and in-addition, costs and interests was ordered against the Third Defendant.

Cases cited

Kari v PNG Power Ltd (2025) N11146
Jonathan Mangope Paraia v The State (1995) N1343
Mel v Pakalia (2005) SC790
Paobi v PNG Electricity Commission (2004) N2511

Counsel

Mr D Wa’au for the plaintiff
No appearance for the third defendant

DECISION

1. NAROKOBI J: The Plaintiff succeeded at trial on liability on 13 March 2023 proving that the Third Defendant’s negligence, resulted in her electrocution. She suffered personal injuries and is now suing for damages occasioned by the negligence of the Third Defendant. No contest was offered by the Third Defendant on liability or assessment of damages.
   

Background

2. There were two causes of actions pleaded, for the tort of negligence and for breach of statutory duties.
   

Issues

3. The issue to be determined is what should be the applicable category of damages and following this, what would then be the appropriate amount of damages that should be granted.
   

Evidence

4. The Plaintiff tendered two affidavits, both filed on 3 May 2024, one from herself and the other from her husband, Joe Warahuli. No evidence was tendered by the Defendants. The evidence tell the following story.
   
5. The incident occurred on Wednesday 1 January 2014 between 6.30pm-7.00pm. The Plaintiff was washing her car at a relatives house, and wanted to hang the rag she was using on a line, which unknown to her was a live powerline. She thought it was a clothesline as it was in the yard where she was. She was instantly electrocuted, thrown into the air, and fell unconscious. She was treated at the Modilon General Hospital in Madang and discharged. Her initial report by Dr Martin Daimen on 10 March 2014 observed brain concussion, generalised body pain, and reactive polymyalgia (pain and stiffness from the waste up). He said her quality of life would be reduced by 50%. Due to the lack of specialist doctors in Madang, she travelled to Port Moresby and to New Ireland for specialist medical attention. She says that she had two miscarriages as a result of the electrocution. This was not confirmed by any medical report. Her medical impairment includes, exacerbated asthma, restricted movement and loss of 50% functionality in general. This was from Dr Karol Popei on 1 June 2015 at the St Mary’s Medical Centre in Port Moresby. Dr Ovoi Verave on 17 August 2023, at the Kavieng General Hospital stated that both the neurologic and psychological long-term sequelae (that is the consequences of) of electrical injury are persistent and greatly affected her.
   

The Law

6. Generally, the principles on assessment of damages, which I consider in this matter are stated in the case of Mel v Pakalia (2005) SC790. I quote these principles from that case:
   
   • 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.)
     
7. I apply these principles when deciding the issues I have referred to above, which I believe the facts raise.
   
8. Of all the cases that the Plaintiff cites, the one I consider most relevant would be cases relating to personal injuries from electrocution such as Paobi v PNG Electricity Commission (2004) N2511. In that case on the evidence before the court, Injia J (as he then was) awarded a moderate global sum for general damages, for nervous shock and post-traumatic stress, which was inclusive of pain, suffering, loss of consciousness, and loss of injury or of life. The injury present was purely one of nervous shock and resulting psychological injury. The court awarded K20,000.00. Special damages was awarded at a reduced sum, as there was no supporting evidence.
   
9. More recently, in Kari v PNG Power Ltd (2025) N11146, K80,000.00 in general damages was awarded with 50% reduced for contributory negligence, giving K40,000.00. The nature of the injuries were [at 47]:
   

47. Based on the photographs and medical report dated 18th September 2009 marked annexures “D” and “E1” respectively in the affidavit of Kendo Kari sworn and filed on 17th September 2019 I am satisfied that the plaintiff Kendo Kari suffered sever burns resulting in wounds on his hands and feet from electrocution and 40% functional loss. However, he did not produce a recent medical report on the update of the wounds and functional loss of his hands and feet.

10. Makhail J in Kari was not prepared to follow Paobi, making these observations:
    

48. The award in Mewori Patrick Paobi is of no assistance because that was a case on nervous shock and the plaintiff Kendo Kari does not seek damages for nervous shock. In the absence of a case on point, I have decided to be guided by awards where multiple plaintiffs suffered wide ranging injuries, some so severe to their hands and feet when they were struck by a tire wire from a footbridge as it collapsed under their weight. In Michael Kunumb v The State (2008) N3480 the plaintiff was awarded a sum of K20,000.00 for loss of three fingers and 70% loss of use of right arm. In Ngants Topo v The State (2008) N3478 the plaintiff was awarded a sum of K30,000.00 for a deformed right foot and 65% loss of use of right leg.

49. The sum of K20,000.00 and K30,000.00 were awarded seventeen years ago and I will increase the award for inflation. Then I will reduce it by 50% for the plaintiff’s contributory negligence. In the circumstances, I award a sum of K80,000.00. This sum is reduced by 50% for contributory negligence and the final sum I award for general damages is K40,000.00.

11. In Paobi which I have referred to above, I agree with Injia J (as he then was), that in a claim for electrocution, general damages would cover firstly physical injuries such as nervous shock and secondly psychological impairment occasioned by the nervous shock. Mahail J did not disagree with this proposition, but he stated that nervous shock was not claimed in Kari.
    

Considerations

12. The Plaintiff submits that she should be awarded the following:
    
    • Damages for negligence against Defendants - K100,000.00.
      
    • General damages for pain, suffering, nervous shock - K20,000.00.
      
    • Special damages - K61,370.00.
      
    • Costs of proceedings - K20,000.00.
      
13. From the cases cited, there is no separate damages awarded for negligence. General damages is the usual award against the tortfeasor for its negligence. The claim for K100,000.00 is for that reason refused.
    
14. As to general damages, the Plaintiff claims K20,000.00. I consider that the several doctors reports, from admission after the electrocution at the Modilon General Hospital in Madang, then to the medical report in Port Moresby and the more recent one in Kavieng by Dr Verave, confirm that the first medical assessment of 50% loss of enjoyment of life diagnosed by Dr Daiman after the incident, is confirmed by the subsequent medical report in 2023, although not explicitly stated by Dr Verave. He says that the Plaintiff suffers from the neurologic and psychological long-term of effect of electrical injury, and they are persistent and greatly affected her.
    
15. In this case, as in Kari, damages will be awarded on the basis of the actual injuries suffered by the Plaintiff. Dr Verave is not a psychiatrist, so I am not prepared to confirm the psychiatric condition, but it goes without saying that a person who encounters a traumatic experience will be medically affected in some way. On the basis of the initial shock and trauma from being electrocuted and that there is a 50% loss of enjoyment of life, the award by Makail J in Kari should apply here. On that basis I award K80,000.00 in general damages, I was going to deduct K30,000.00 because the occupier of the building had some responsibility to report the sagging line to PNG Power Ltd, however the Plaintiff still requires ongoing medical attention, the recent one was in 2023, so the award of K80,000.00 for general damages is confirmed.
    
16. Special damages is the next category of damages to be considered. This head of damages is awarded for actual losses and must be supported by evidence of the actual money spent, a reimbursement as it were. Applying the principles in Mel, the claim should be corroborated, preferably by an independence source. The Plaintiff claims K61,370.00 for special damages being costs of airfares, accommodation and medical visitations. Copies of boarding passes are provided and the medical reports, confirm the location she says she visited. Although the evidence does not support the rental accommodation, it is clear the Plaintiff was in Port Moresby and in Kavieng, and would have incurred costs from those trips. I will in the exercise of my discretion, applying the case of Jonathan Mangope Paraia v The State (1995) N1343 award K50,000.00 in special damages.
    
17. No award for exemplary damages is made because there was some responsibility on the owners of the building to report the sagging powerline. This was not done, so no award is made for exemplary damages. This is conceded by the Plaintiff, and no claim is made for exemplary damages is made by her.
    
18. Total damages awarded, covering general damages and special damages will be K130,000.00. Again, no award is made for damages for negligence, and further, exemplary damages is not considered.
    

Costs and Interest

19. Costs necessarily follows the event, and I award costs in favour of the Plaintiff. The Plaintiff submits for costs in the fixed sum of K20,000.00. Considering that taxation does not regularly occur in Madang, and that the taxed costs is likely to be higher, but the Plaintiff appears to want an early closure to litigation, I will award costs in the fixed sum of K20,000.00.
    
20. Interest will be awarded at 8% pursuant to the Judicial Proceedings (Interest on Debts and Damages) Act 2015 on the date of entry of liability that is, 13 March 2023 to the date of judgment. This is because the Plaintiff at some stage of the proceedings, left the case unattended and the matter was considered for summary determination.
    

Conclusion

21. The Plaintiff has proven negligence of the Third Defendant. She will be entitled to damages, consisting of general damages of K80,000.00, and special damages for K50,000.00, giving a total of K130,000.00 in damages. Costs and interests are also awarded against the Third Defendant.
    

Order

22. The formal orders of the courts are therefore as follows:
    
    1. The Third Defendant pays the Plaintiff a judgment sum of K130,000.00.
    2. There shall be interest paid on the judgment sum, calculated at 8% from the date of entry of liability from 13 March 2023 to the date of judgment.
    3. The Third Defendant shall pay the Plaintiff’s costs in the fixed sum of K20,000.00.
    4. The matter is considered determined, and the file is closed.
    5. The time for the entry of the orders is abridged, which shall take effect as soon as the ordered are endorsed by the Registry.
       
23. Judgment and orders accordingly.

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Lawyers for the plaintiff: D.F.W Lawyers