SC816

PAPUA NEW GUINEA
[In the Supreme Court of Justice]

SCA 173 of 2004

BETWEEN:

MOTOR VEHICLE INSURANCE LIMITED
Appellant

AND:

KEN LET
Respondent

MT. HAGEN : SEVUA, SAWONG & LAY, JJ
2005 : 29 June & 7 December

DAMAGES – Measure of – Personal injuries – Future economic loss – General damages – Nature of injury – Whether awards made by the trial Judge are based on evidence – Whether awards based on comparable verdicts and proper legal principles – Whether awards are excessive.

Cases cited:
Coady v. Motor Vehicle Insurance (PNG) Trust [1987] PNGLR 55,
Timson Noki v. Barclay Brothers & Frazer [1991] PNGLR 260,
Anna Endenken v. The State [1998] PNGLR 286,
Brian John Kevis v. The State (1990), unreported, SC175.

M. Titus for the Appellant
P. Dowa for the Respondent

7 December, 2005

BY THE COURT: This is an appeal against the judgment of His Honour Mr. Justice Hinchliffe given at Waigani on 4 November 2004, in an action by the respondent, then a student at the time of the accident (now an adult), for damages for personal injuries arising from a motor vehicle accident. At the time of the accident he was aged between 16 years and 19 years old. His Honour determined and awarded a global award of K30, 000.00 for future economic loss and K40, 000.00 for general damages.

The brief facts giving rise to the claim were that the respondent was injured in a motor vehicle accident. He issued proceedings against the appellant. A trial was conducted on both liability and damages. In the trial, the respondent called five witnesses including a doctor and the appellant called one witness, also a doctor. At the end of the trial, His Honour found the appellant liable and also found that the respondent was contributorily negligent. The appeal is against quantum of damages. There is no appeal against the finding of liability.

The grounds of the Appeal

There are four grounds of appeal but these may be summarized into two categories. Ground 3 (a), (b) and (c) relate to the award of K30, 000.00 for future economic loss. Ground 3 (d) relates to the award of K40, 000.00 for general damages. Thus, the two issues to determine are firstly, whether the award of K30, 000.00 for economic loss was based on the evidence and on the relevant governing principles of law relating to such awards. The second issue is whether the award for general damages for pain and suffering and loss of amenities was reasonable and based on appropriate comparable verdicts and proper legal principles. 

Two main grounds were argued. The first is that the learned trial judge made errors in his findings of fact and law on future economic loss when there was no relevant evidence adduced by the respondent relating to such loss. It is further submitted that His Honour erred in fact and in law in awarding K30, 000.00 for future economic loss as a global award without identifying the correct legal principles applicable then applying such principles.

Secondly, it was submitted that His Honour erred in fact and in law in awarding the sum of K40, 000.00 for general damages in that the medical evidence was not properly evaluated by His Honour and that, His Honour had erred in rejecting the appellant’s witness, a doctor when the witness’ evidence was not challenged at all.

Loss of Future Earning Capacity

The first argument was that there was no evidence at all of the substantial risk that would be caused that would limit the range of employment opportunity for the respondent as a result of his injury. It was submitted that there was no credible evidence of the financial damage that would be caused, nor was there other evidence suggesting efforts by the respondent to adopt or to seek employment of any kind. It was submitted that the respondent did not produce any substantial and credible evidence at all from which any assessment of future economic loss could be made and therefore no award in damages for loss of future earning capacity should have been awarded by the learned trial judge. 

Counsel for the respondent, Mr. Dowa, relying on the authorities of Coady v. Motor Vehicles Insurance (PNG) Trust [1987] PNGLR 5; Motor Vehicle Insurance (PNG) Trust v. Pupune [1983] PNGLR 370, and Kaka Kopun v. The State [1980] PNGLR 557, submitted that His Honour had made no errors in awarding a global award of K30, 000.00 for future economic loss. He submitted that the award is not unreasonable and is within the range. Counsel further submitted that there was sufficient evidence on which His Honour was able to arrive at that figure. 

The learned trial judge in his judgment said at p. 6:

"Future Economic Loss.

This to my mind is a very difficult area to assess a proper figure. I say that because at the time of the accident, the plaintiff was a grade 9 high school student in Mt. Hagen, aged between 16 to 19 years. There are no real figures to work on. Needless to say, it was likely that he would have found some sort of employment if he had not been injured because of his educational level, whereas now, it would be most unlikely if he ever found any paid employment. He is now aged in his early to middle 20’s and could have worked for another 30 years or so if nothing untoward happened to him. Exactly what type of employment he would have found is only a guessing exercise on my part. I am satisfied that a global figure is appropriate in this case, and I fix that figure at K30,000.00".

The basic principle of law on future economic loss or earning capacity has been well settled in this jurisdiction. The Supreme Court in Coady v. Motor Vehicle Insurance Limited (supra) established that a claim for damages under the head of economic loss in personal injury cases may be broken into two categories:

(a)	Loss of actual earnings; and
(b)	Loss of future earning capacity.

On this aspect, we adopt the judgment of Amet J, (as he then was) in Coady (supra) where His Honour said at p. 61:

"It is true that there are great difficulties in a Court forecasting into the uncertain and unknown future what the educational and thus employment prospects of an infant child might be. The amount of damages arrived at must necessarily be speculative in the extreme given the age of infant plaintiffs. But what has somehow to be quantified is the present value of the loss which the plaintiff will at some future time suffer as a result of the injury. "It must be remembered that, when assessing compensation for loss of future earnings, the Court is not seeking to replace week by week the sums which the plaintiff would have earned. It is only giving compensation for loss of future earnings capacity.." per Lord Denning MR in Taylor v Bistol Omibus Co. Ltd [1975] All ER 1107.."

After setting out the judgment of Lord Denning MR in that case in relation to "loss of future earnings", His Honour continued at p.62:

"It is true that in Taylor v. Bistol Omnibus and other reported cases, the plaintiff did suffer quite severe injuries. But the Courts have not made any distinctions between the degrees of injuries sustained by such plaintiffs as a basis for award of damages. The major factor has been whether the injuries are permanent and whether they may affect the plaintiff’s earning capacity when he enters school and ultimate the job market. If it is sufficiently established that the injury is permanent and that it may effect the earning capacity of the plaintiff in years to come, then the Court must do the best it can, on established principles, to evaluate the possible loss of earning capacity in mandatory terms, however speculative and imprecise that may be". 

With respect, we adopt and apply those principles in the present case. Contrary to the submissions advanced by Mr. Titus for the appellant, the plaintiff in paragraphs 8, 9 and 10 of his affidavit says that because of the injuries he had sustained, he found it difficult to use his hands to even work in his garden. This is what he says in his affidavit.

"8.	Because of this difficulty I was laid off from school for a period of 8 weeks and because I was not able to use my right hand in writing. Because of that I was not able to continue my education successfully so I dropped out from Grade 10 and was not able to continue with my education thereafter.

Annexed hereto and marked with letter "C" is a copy of the letter from Mr Simbil, Deputy Headmaster, Student Affairs enclosing my records.

Annexed hereto and marked with letter "D" is a copy of my records.

Annexed hereto and marked with letter "E" is a copy of letter from the Class Teacher dated 11th August 1999.

Annexed hereto and marked with letter "F" is a copy of letter from Deputy Headmaster, Administration dated 02nd April 1998.

Annexed hereto and marked with letter "G" is a copy of the letter from the School dated 18th May 1998.

9.	As a result of the injuries and subsequent disability I find it difficult to use my hands even to work in gardens. I am only 24 years old now. I received injuries when I was about 16 years old. Since then my life has not been good. I cannot live normal like other young persons. The accident was a traumatic experience for me. It changed the whole course of my life. I at times feel depressed because I can not effectively use my hands for playing or working in gardens or writing.

10.	I am the third born amongst five children. I have other brothers and life in the village is now becoming extremely difficult for me as I can hardly fend for myself effectively."

The evidence set out above came from the plaintiff. He was never cross examined by Mr. Titus on those matters he deposed to. In fact, if one looks at the transcript, Mr. Titus spent his entire cross examination of the witness on the question of liability. He did not ask any question on the plaintiff’s evidence we have referred to. Thus, that evidence remains undisputed and unchallenged. The plaintiff was not discredited in cross examination at all. It is our opinion therefore that under the circumstances, the trial judge was perfectly entitled to come to the conclusion he reached and make the global award that he did on the basis of the evidence before him. Accordingly, we find no errors on the part of the learned trial judge and we therefore dismiss this ground of the appeal.

General Damages

The appellant’s submission here was that the learned trial judge had erred in taking into account consideration such as the effect of the injury in the context of employment prospects when he assessed the reasonable amount to be awarded for general damages for pain, suffering and loss of amenities. Mr. Titus submitted that considerations such as the effect of injury in the context of employment prospects are matters relevant to determine economic loss and not general damages. He further submitted that His Honour had erred in not carefully considering comparable verdicts that have been previously given in similar cases. It was his submission that the uncontested medical evidence given by Dr. Daisy Sonza on behalf of the appellant and taking into account the comparable verdicts referred to by His Honour, a reasonable general award should be in the range of K25, 000.00. 

Mr. Dowa on the other hand submitted that His Honour had not made any error in arriving at the award. He submitted that His Honour had medical evidence before him which showed different degrees of permanent loss in the effective use of the respondent’s right hand by different doctors. He further submitted that the award was consistent and within the range of such awards as in the case of Timsen Noki, Pangis Toea v. Barclay Brothers & Frazer [1991] PNGLR 260 and Anna Endiken v. the State [1998] PNGLR 286 where the award in those cases was K35, 000.00. He submitted that with inflation over the last 13 years the award of K40, 000.00 in general damages was reasonable.

In his judgment, after assessing all the medical evidence the trial Judge said at pages 4 and 5: 

"The plaintiff suffered a very serious injury to his right elbow which is now, not only most unsightly but it also is almost 100 percent nonfunctioning. To make things even worse, the plaintiff is right-handed and Dr. McKup is of the opinion that the plaintiff’s right elbow will deteriorate further as time goes by.

The only witness called by the defendant was Dr. Daisy Sonza who was of the opinion that the plaintiff has suffered about 50 percent total loss of function of his right elbow.

After considering and assessing all of the evidence including that of the plaintiff, I am far inclined to accept the evidence of Dr. McKup and the plaintiff himself. He clearly has a permanent, serious injury to his right elbow which has a effect, put his right arm out of action for the rest of his life. He is only a young man who now has an enormous burden to carry. The fact that he was hospitalized for several months after the accident is an indication of the seriousness of the injury incurred by him. As is usual, counsel have referred me to various past cases to assist me when I am considering a reasonable amount for general damages. As has been said many times before, these past cases are clearly a guide to go by and by no means is mandatory that the Court follows them. Past cases are always of assistance to the Court when assessing damages. My own experiences over the 18 years that I have been a Judge is that about ten 10 to fifteen 15 years ago the Courts were awarding damages for the total loss of a limb an amount between K25,000.00 to K35,000.00 (see for example, Tinsen Noki v Barclay Brothers & Frazer [1999] PNGLR 260. Since then, of course the value of the kina has declined and the purchasing power is therefore decreased. Cost of living has increased substantially and that has been felt by all of us in our every day lives. 

It would seem to me that when one considers the serious permanent unsightly injuries received by the plaintiff and also his young age and suffering that he has incurred and the effect that the injury has had on his schooling and the slim prospects of ever getting fully paid employment, I am satisfied that the reasonable award for general damages is K40,000.00 and I so order."

In our view the trial judge carefully considered the medical evidence given by the two doctors who came and gave sworn oral evidence before him. He assessed their evidence and he preferred the evidence of Dr. McKup and the plaintiff to that of the appellant’s witness, Dr. Sonza. 

In our opinion it was open to the trial Judge to accept whichever version of the medical evidence he considered valuable.

We are of view that the learned trial judge had considered carefully all the evidence and the relevant authorities and legal principles in arriving at the quantum of damages he had awarded.

It is our opinion also that the rise in inflation, the decrease in the value of the Kina, increased costs of living and other considerations which the trial Judge alluded to in his reasons are matters that justify an increase in the awards that the Courts were making ten to fifteen years ago. The level of quantum of damages that were being considered by the Courts in the same period are certainly no longer applicable in the circumstances of the country today when we consider the increase in inflation, value of the Kina etc.

In our view, the appellant has not demonstrated either identifiable or unidentifiable errors by His Honour. In the circumstances, we would also dismiss this ground of the appeal.

In conclusion we order that the appeal is dismissed and that awards made by the learned trial Judge are confirmed. We also order that the appellant pays the respondent’s costs of the trial in the National Court and the costs of this appeal.

Therefore the orders are –

1.	The appeal is dismissed.

2.	The awards of K30, 000.00 for future economic loss and K40, 000.00 for general damages are confirmed.

3.	The Appellant pays the respondent’s costs, to be taxed if not agreed.

Lawyers for Appellant : Mirupasi Lawyers
Lawyers for Respondent : Dowa Lawyers