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Supreme Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]
SCA NO 82 OF 2021
BETWEEN:
CONSTABLE DICKSON PITU
First Appellant
AND:
SUPERINTENDENT JOHN KALE
Second Appellant
AND:
GARI BAKI, POLICE COMMISSIONER
Third Appellant
AND:
INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Appellant
V
RONNIE MARKHAM
Respondent
Waigani: Anis J, Dingake J, Dowa J
2022: 26th April & 15th July
SUBSTANTIVE APPEAL – civil – personal injuries – appeal against liability and quantum – considerations –
grounds on liability premised on credibility of evidence – whether corroboratory evidence matter when credibility is in serious
doubt – whether want of submissions on issues already before the Court below means or qualifies as issues not raised in the
Court below therefore disallows a party from raising them in the Supreme Court – considerations and ruling - quantum –
whether trial erred in the exercise of his discretion - whether receipts or cogent evidence required to establish and sustain a claim
and award for special damage – considerations of other damages/awards made by the Court below to determine whether the trial
Judge erred
Cases Cited:
Fly River Provincial Government v. Pioneer Health Services Limited (2003) SC705
Isaac Lupari v. Sir Michael Somare and Ors (2010) SC 1071
Rimbunan Hijau (PNG) Ltd v Ina Enei SCA 126 of 2011, delivered 31 August 2017 (Salika DCJ, Kandakasi & Toliken JJ)
Jonathan Paraia v. Mountain Catering Ltd (2017) SC1686
PNGBC v Jeff Tole (2002) SC694
Leeway East Enterprise Ltd v. Daniel Danaben (2013) N4951
Helen Jimmy v. Paul Rookes (2013) N5360
T.T Angore Noa Hai Investment Ltd v. Kau Buna (2019) N7881
Roselyne Cecil Kusa v. Motor Vehicle Insurance (PNG) Trust Ltd (2002) N2328
Zita Seaupain v The State (2009) N3573
Namba v The State (2011) N4396
Meta v. The State (2012) N4745
Kerry v. The State (2012) N4658
Ekip Pade v The State (2018) N7073
Lance Kolokol v The State (2009) N3571
Paraia v. The State (1995) N1342
Kaka Kopun v. The State [1980] PNGLR 557
Cheong Supermarket Pty Ltd v. Muro [1987] PNGLR 24
Counsel:
R. Uware, for the 1st, 2nd, 3rd, & 4th Appellants
T. Ilaisa, for the Respondent
15th July, 2022
1. BY THE COURT: This was an appeal against the final decision of the National Court in Goroka made on 17 June 2021 in proceeding WS No. 567 of 2019 (WS 567 of 2019/Court below). The appellants were defendants and the respondent plaintiff in the Court below. The appeal is against both liability and quantum.
2. Based on the writ of summons and statement of claim filed on 15 May 2019 (SoC), the respondent alleged that he was unlawfully wounded, arrested, and detained, from events that occurred between 7 May 2015 to 23 September 2015 in Goroka in Eastern Highlands Province.
3. He claimed that at the material time on 7 May 2015, he was at a market called Kakaruk market to buy betel nut and chat with friends when policemen approached him and called out to him. He said he panicked so he ran into the main Goroka market. He said he surrendered shortly afterwards, but regardless of that, one of the policemen who had chased him who had an M16 rifle with him, shot him on his lower left leg at close range at about 1.5 meters. He said he laid there on a road at the Chuave market which was situated opposite Gahuku Traders. He said he suffered tremendous pain because both his lower left bones, Tibia and Fibula, and the main blood vessel, were shattered. He said his lower left leg was later amputated and that he received treatment thereafter to heal the wound to his left leg. He also claimed that whilst he was arrested on 7 May 2015, that he was never formally charged or afforded his right to bail. He said he was kept in abeyance for a period of 4 months. He therefore also alleged breaches of statutes and of his rights under the Constitution, that is, (i), breaches of the ss 42(6) and 197(2) of the Constitution, (ii), breaches of ss 14(a)(i)(ii) and 17(1)(a) of the Arrest Act Chapter No. 339 (as amended), and (iii), breach of s 6 of the Bail Act Chapter No. 340.
4. The appellants denied the claim. They alleged that the respondent had with him a home-made gun at the material time and that he was about to shoot at the policemen which was why they shot him in the left leg, that is, in fear of their lives and the lives of the public at large.
5. The matter was trialed on liability and quantum on 27 April 2021. And on 17 June 2021, the trial Court handed down its final decision as follows:
6. The defendants were aggrieved of the decision and so they filed this appeal.
GROUNDS OF APPEAL
7. The appellants raised 12 grounds of appeal. They are contained in their Notice of Appeal filed 27 July 2021 (NoA). The NoA is located at page 4 of the Appeal Book filed on 28 October 2021 (AB).
8. Grounds 3(a), (b), (c), (d) and (e) address liability, and grounds 3(f), (g), (h), (i), (j), (k), and (l) address quantum.
LIABILITY
9. In regard to the grounds that address liability, we note that the main arguments on questions of mixed fact and law relate to the time when the respondent was shot in his lower left leg, and the time when he was kept in police custody. The main dilemma faced by the trial Court was whether to believe the facts as revealed by the respondent through his evidence, or whether to believe the facts as stated in the evidence of the appellants. The trial Court rejected the appellants’ version of events and believed the facts as stated or recalled by the respondent. The appellants argue in their grounds of appeal on liability that their evidence was corroborated, and that the trial Court erred when His Honour failed to take that into account but rather believed the uncorroborated evidence of the respondent.
10. The appellants’ material evidence concerning the time of the shooting was this. They said the respondent did not try to surrender when they first tried to apprehend him on 7 May 2015. They said they had to chase after him. They said the respondent suddenly stopped, turned around, and pointed a home-made pistol at the first appellant. They said that was when the first appellant shot the respondent in his lower left leg from a distance of about 10 meters across a road. On the said disputed facts, the respondent’s evidence was that he did run away at first from the police because he said he feared for his life. But he said that as soon as the policemen caught up with him, he surrendered himself by putting both his hands up towards them. He denied carrying any weapons at the material time, in particular, a home-made pistol and ammunition as alleged by the appellants.
11. The first appellant’s evidence was ‘corroborated’ by another policeman, namely, Justine Kunduane. This happens to be the main reason why the appellants are saying that the trial Judge erred, that is, they say the trial Judge did not consider or have regard to the said supportive evidence but rather believed the sole evidence of the respondent on the matter which was not corroborated.
12. We have considered the findings of the trial Judge on this matter. His Honour discussed that at paras 14 to 23 in his written decision (see pp 98 to 100 in the AB). His Honour in summary did not believe the evidence of the appellants. He found their evidence not credible. On the other hand, His Honour found the evidence of the respondent credible as well as logical. The appellants did not produce any evidence of a home-made pistol or ammunition as they had alleged in their defence. That was taken into account by the trial Judge and considered unfavourably against them. Also noted by the trial Judge was the distance of the shooting. The trial Judge found that the first appellant had to be at close proximity to the respondent in order to take a good aim and shot at the respondent’s left lower leg with a rifle. The trial Court rejected the appellants’ evidence that the first appellant stood some 10 meters away or that he was on the other side of the road before he took the shot. The trial Judge also took into account the contradictions that were made by the appellants, that is, when considering the alleged facts as pleaded to those adduced or wanting in evidence.
13. We do not find errors in the decision of the trial Judge on liability. The trial Judge was not bound by law to strictly make a decision that must be based on the numbers or quantity of evidence given by the parties on the issue or based only on corroboratory evidence. Corroboratory evidence may assist a judge to prove a finding of fact(s). That said, there are also other considerations where a trial Court would be at liberty to consider and weigh. Other considerations include demeanor or credibility of witnesses. Factors that may influence a judge’s assessment of the witnesses or evidence, apart from witness demeanor, include consistencies, inconsistencies, rationality, and common sense. In this case and as we have stated herein, the trial Judge did not find the evidence of the appellants credible. His Honour also criticized the evidence of Mr. Kunduane, that is, the policeman who supposedly corroborated the evidence of the first appellant. His Honour noted (pp 100 of the AB) where Mr. Kunduane had stated that he was doing the “right thing” by supporting his colleague. His Honour appeared to have weighed that against the credibility of the evidence of the appellants in his findings. So, with these findings and considerations, the trial Judge was, in in our view, at liberty to arrive at his decision as he had done in this case.
14. Grounds 3(a) to (e) are premised on the above main disputed facts. Given our findings, these grounds shall fail. We note that His Honour, in believing or in accepting the respondent’s evidence, meant that His Honour had also accepted the respondent’s evidence regarding how he had suffered pain when he was shot by the police, how he had been treated at the hospital, and how he had been kept in the police cell without being formally charged. We find that His Honour was entitled to make these findings based on what he had before him or based on his own assessment of the evidence.
15. We find no error committed by the trial Judge in this regard. We uphold the findings by the trial Judge on liability.
GROUNDS 3(f) to (l) - ASSESSMENT
16. In regard to assessment of damages, we note grounds 3(f) to (l) which are contained at page 6 of the AB. We set them out herein:
(f) The trial judge erred in law and in fact in awarding special damages of K3,520.00 for items claimed as admission fee (K50); operation fee (K300); bed and beddings fee (K50); discharge fee (K20); daily expenses in hospital (2, 000): medical report (K100) medicine (Hospital and Pharmacy) (K200); artificial leg (K800) when these items of expense were not particularized and/or not proven.
(g) The trial judge with respect erred in law and fact in admitting into evidence and considering the annexures to the Respondent’s two affidavits when they were objected to because they were not tendered or admitted through the authors of annexures.
(h) The trail judge erred in law and in fact by awarding the Respondent K175,000.00 for knee amputation of the left leg which was excessive under the circumstances.
(i) The trial judge erred in law and fact by awarding the Respondent K10,000.00 each for the constitutional breaches and K50, 000.00 for exemplary damages when the evidence and comparable verdicts of case law did not support and justify the awards.
(j) The trial judge erred in law and in fact by awarding past loss of income of K60,000.00 at K10,000 each year for three (3) years when there was no justification for such awards.
(k) The trial judge erred in law and in fact by awarding future loss of income of K25, 000.00 by projecting K5,000.00 yearly which was excessive and unjustified, and not supported by evidence.
(l) The trial judge erred in law and in fact in the exercise of his discretion in awarding pre-judgement interest by taking into account five (5) yearly to run from the date of injury to the date of judgment based on the reasoning that the delay may have been due in part to trauma suffered by the Respondent which was not reasonable and thus unjustified.
17. A preliminary submission raised by the respondent is this. He submits that the appellants did not make any submissions on or challenge damages before the trial Court, and as such, all the grounds of appeal challenging assessments made by the Court below should be dismissed.
18. The appellants do not dispute this fact. We also find that to be the case based on our perusal of the transcript of proceeding, that is, at pp 107 of the AB. We also note that from the appellants’ written submission to the Court below filed in June of 2021 (located at pp 83 of the AB). Their brief submission on damages was that the respondent was not entitled to claim them because he failed to establish liability on the balance of probabilities.
19. The proposition of the law that unless a party has raised an issue in the court below, he is not at liberty to raise it on appeal, is settled by the case law in this jurisdiction. This Court in Fly River Provincial Government v. Pioneer Health Services Limited (2003) SC705, stated, and we quote:
It is settled law that, unless a party has raised an issue in the court below, he is not at liberty to raise it on appeal. There are many authorities on point. An example of that is Motor Vehicle Insurance (PNG) Trust v. John Etape [1994] PNGLR 596 at p. 599 which followed and reaffirmed an earlier decision of the Supreme Court in Motor Vehicles Insurance (PNG) Trust v. James Pupune [1993] PNGLR 370 at pp. 374 to 775.
20. Other Supreme Court cases that applied this principle include Isaac Lupari v. Sir Michael Somare and Ors (2010) SC 1071, Rimbunan Hijau (PNG) Ltd v. Ina Enei SCA 126 of 2011, delivered 31 August 2017 (Salika DCJ, Kandakasi & Toliken JJ) and Jonathan Paraia v. Mountain Catering Ltd (2017) SC1686.
21. However, we note that the present case does not fall within the said principle of law. This is not a case where the appellants are attempting to, (i), raise new issues that were not raised before the Court below, or (ii) raise matters that have not been pleaded in WS 567 of 2019, or (iii), raise matters or evidence that they have not objected to in the Court below which were allowed and relied upon by the trial Court to decide on the matter. Issues for trial before the trial Court included assessment of damages. However, the appellants had decided not to make any submissions on relief or damages. Their decision (i.e., in refusing to make submissions on quantum) was premised on their written submissions on liability where they had stated, As the answer to all the questions were answered in the negative the Defendant’s (sic) submission would be that the Defendants (sic) are not entitled to any damages (quoted at pp 11 of their written submission which is located at pp 93 of the AB). That being the case, the trial Judge, after having found the appellants liable, proceeded to assess damages. We note that there was no separate time given to the parties for the closing arguments or submissions. The respondent handed up his submissions at the close of the trial whilst the appellants were permitted 2 weeks to file their written submissions, after which time the Court retired before delivering its decision on 17 June 2021.
22. So, in short, we dismiss the preliminary argument by the respondent. We find that the grounds of appeal raised in regard to the type of relief and damages awarded were properly before the trial Court for consideration. And they involve exercise of discretion by the trial Judge to consider and award relief for each head of damage. It is our view that even if no argument is put forward by a party on assessment of damages in the National Court, that it does not prevent that party on appeal from challenging the exercise of discretion by a trial Judge on the matter(s) concerned. But as stated above herein, it should be subject to the requirement that the matter in question on appeal had been an issue(s), or was pleaded, or that evidence had been led on the matter, in the National Court that it may be subject to further challenges in the Supreme Court on appeal or review.
23. On that basis, we will consider each of the grounds herein.
GROUND 3(f) – SPECIAL DAMAGES
24. The trial Judge awarded K3,520 for special damage.
25. Special damage in personal injury matters is required to be pleaded with particulars. The requirement is stated under Division 2 - Order 8 of the National Court Rules (NCR). In particular, Order 8 Rule 33(1)(g) states in part:
(1) Where a claim is made by the plaintiff for damages for breach of duty, and the damages claimed consist of or include damages in respect of the death of any person or in respect of personal injuries to any person the statement of claim endorsed on the writ of summons shall set forth full particulars of the claim, including—......(g) details of each item of special damages claimed, including wages and other economic loss, both present and future......
26. This requirement is affirmed by this Court’s earlier decision in PNGBC v Jeff Tole (2002) SC694, and it has been applied in various National Court decisions including Leeway East Enterprise Ltd v Daniel Danaben (2013) N4951, Helen Jimmy v Paul Rookes (2013) N5360 and T.T Angore Noa Hai Investment Ltd v. Kau Buna (2019) N7881.
27. In the present matter, the respondent pleaded particulars of special damage, namely, out of court expenses, at paragraph 26 of his SoC (page 14 of the AB). There was therefore compliance in that sense or in regard to the requirements under Order 8 Rule 33(1)(g) of the NCR. However, the appellants’ contention is that the out of court expenses were not supported by actual receipts, that is, from the evidence of the respondent that were before the trial Court.
28. It is not disputed that no receipts were produced to support this out-of-pocket claim by the respondent. In our view, special damage re out-of-pocket expenses is just that, that is, where a claimant is seeking re-imbursements for expenses that were incurred directly as a result of the injuries suffered or sustained. How is that proven, one may ask? It is proven by showing the actual receipts or cogent evidence. Mere depositions or oral testimonies from witnesses that payments have been made would not amount to sufficient proof of the payments. It is not also correct, in our view, to exercise discretion premised on the notion that because someone has suffered an injury and has received treatment or has been admitted to a hospital, it is therefore safe to assume that the person had or must have incurred costs. That may very well be the case. However, to claim special damage, one must show the actual receipts, or proper or cogent evidence, to show that such expenses had been incurred; no receipts or cogent evidence to prove payment means or should mean that no payment at all must be allowed and that is or should be that. We would also adopt as relevant case law on the subject matter what Gavara-Nanu J has stated in Roselyne Cecil Kusa v. Motor Vehicle Insurance (PNG) Trust Ltd (2002) N2328, that is:
These are special damages which must be specifically claimed and proved strictly. This principle was stated by Lord Macnaugton in Stroms Bruks Aktie Bolag –v- John and Peter Hutchinson [1905] UKLawRpAC 52; [1905] A.C 515 at page 525.
"Special damages ..... are such that as the law will not infer from the nature of the act. They do not follow in the ordinary course. They are exceptional in their character, and therefore, they must be claimed specifically and proved strictly...." (my underlining).
This principle was stated broadly by Lord Goddard in, British Transport Commission –v- Gourley [1955] UKHL 4; [1956] A.C 185 at page 206:
"In an action for personal injuries the damages are always divided into two main parts. First, there is what is referred to as special damage, which has to be specially pleaded and proved. This consists of out – of pocket expenses and loss of earnings incurred down to the date of trial, and is generally capable of substantially exact calculation. Secondly, there is general damage which law implies and is not specially pleaded. This includes compensation for pain and suffering and the like, and, if the injuries suffered are such as to lead to continuing or permanent disability, compensation for loss of earning power in the future" (my underlining).
29. In the Court below, the trial Judge did not have any evidence of receipts that were produced by the plaintiff. The only evidence adduced which the trial Judge had before him was what was deposed to by the plaintiff in his affidavit filed on 17 February 2021 (at pp 51 and 52 of the AB). We therefore find that the trial Judge erred in the exercise of his discretion when he awarded special damage in the sum of K3,520. There were no receipts or cogent evidence adduced that supported this finding. We therefore uphold this ground of appeal on quantum and dismiss the award of K3,520.
GROUND (g)
30. We turn to address ground 3(g). We find this ground of appeal vague and not a correct reflection of what had transpired, that is, in regard to the 2 affidavits that were filed by respondent in support of his claim in the Court below. Consequently, it makes the ground vague or uncertain of what it actually seeks. For example, from the 2 affidavits, only 1 has annexures to it and not both as alleged therein. Secondly, not all the annexures were actually objected to by the appellants as revealed in the transcript of the proceeding (at pp 112 of the AB). The affidavit that has the annexures was not identified by the appellants in the said ground nor in the written submission that they have filed. We would therefore dismiss this ground based on ambiguity.
31. Nevertheless, we will say this. It appears that the appellant was referring to the respondent’s Affidavit filed on 17 February 2021 (pp 25 of the AB). Reading from the transcript of proceedings and of the objections that were raised therein, the appellants, in the end, only challenged the ‘medical report’ that was attached as annexure A to the said affidavit. The said annexure is an open letter dated 4 September 2019, titled, TO WHOM IT MY (sic) CONCERN, and it was drafted by a Dr Mondurafa. The respondent was its recipient and so he attached that to his affidavit. Want of written or oral testimony from a medical doctor who had prepared a medical report or who had examined the respondent, would, in our view, be a separate matter. If such a witness was not called, as was in this case, that would have been a matter for the respondent perhaps to his detriment. The appellants, on the other hand, would have addressed that in their submissions, that is, on the proof or want of proof of the injuries, their extent or permanencies. But it is misconceived, in our view, to say that the respondent was not the author of the letter therefore he cannot produce that in Court. It was an open letter, and the respondent had received it and as such had attached it as his reference or evidence. Had the appellants prepared their independent or separate medical examination of the respondent, they could have tendered that in Court or required their medical doctor to appear to testify against the veracity of the evidence of the respondent. They had not done that in this case before the trial Court and now are simply complaining of the summary of findings which the respondent had privy to and had filed as his evidence.
32. And this. Even if we were to uphold this ground and dismiss annexure A, the said evidence was not crucial, but rather, was part of all the evidence that were before the trial Judge for consideration. And perhaps most importantly, we note that the fact that the respondent’s left leg was amputated below the knee was not disputed. He was physically present in Court to give evidence with his amputated left leg, and there were photographs of that which were adduced in evidence.
33. We find no real utility in the objection raised by the appellants in the Court below which is captured under this ground of appeal. Thus, we find this ground of appeal baseless and futile, and we dismiss it.
GROUND 3(h), (i), (j) and (k)
34. These grounds relate to findings by the trial judge on the various other damages.
35. In regard to amputation of the left leg (Ground 3(h)), the trial Judge awarded K175,000, that is, as damages for pain and suffering and loss of amenities. The appellants submits that the sum awarded was excessive under the circumstances. Case authorities that were referred and relied upon by the appellants show awards made by Courts in similar cases in sums that range between K100,000, K150,000 and K200,000, that is, Zita Seaupain v The State (2009) N3573, Namba v The State (2011) N4396, Meta v. The State (2012) N4745, Kerry v The State (2012) N4658 and Ekip Pade v The State (2018) N7073.
36. We note that the trial Judge’s assessment on general damage was within the range of these case authorities. We find no error committed by the trial Judge in making this award, and so we dismiss this ground of appeal.
37. In regard to compensation for breach of the respondent’s constitutional rights under ss 36(1), 37(1) and 42, the trial Court awarded a total sum of K30,000. The appellants’ submission under this ground is premised on their claim that their action to shoot the respondent was in self defence. They also claim that after the respondent was released from the hospital, he had evaded reporting back to the police to face his charges. The appellants also deny having kept the respondent at the Goroko Police Cell from 4 August 2015 to 23 September 2015. Their submissions under Ground 3(i) are premised on their claim that the findings by the trial Judge was contrary to their evidence on liability. These matters have already been considered in favour of the respondent. The Court below had discarded the appellants’ evidence which we have also upheld herein. We also find the sums awarded to be within the range of awards made by the Court in the past for similar breaches. Cases include Ekip Pade v. Albert Nangas (supra) and Lance Kolokol v The State (2009) N3571.
38. We next refer to the findings by the trial Judge on exemplary damage. His Honour awarded a sum of K50,000 under this relief to the respondent. We refer to the appellants’ written submission. Again, we observe that the appellants are also rely on their evidence of facts on the question of liability to advance their argument under this head of damage. We find the argument misconceived or untenable and dismiss it. We also find the sum awarded reasonable or within the range of the cases that his Honour referred to which we have stated above herein.
39. The appellants also refer to s 12(1) of the Claims By and Against the State Act 1996 (CBASA) and argue under this ground of appeal that exemplary damage should only be awarded if the constitutional breaches were so severe and continuous. They submit that there was no evidence which showed or suggested that the actions or omissions of the first appellant or police were so severe, continuous, or willful, to warrant application of s 12(1) of the CBASA. We dismiss this argument as misconceived. Again, the appellants’ argument is based on matters of facts they had relied upon to argue that they were not liable which we have dismissed therein by upholding the decision of the trial Judge. We also note the following. There was evidence filed by the respondent which was believed by the trial Judge. Evidence adduced by the respondent showed that he was shot with an M16 riffle at close range after he had raised his hands up and had surrendered to the police. Evidence adduced also showed that he had suffered extreme pain at the material time before he was taken to the hospital and later detained in the police cell without being charged for a period of 1 month and 22 days. He was kept there in the police cell whilst he was also still recovering from his wound, that is, his amputated left leg. These were all considered by the trial Judge before he arrived at this decision. We therefore find no error committed by the trial Judge in making his findings and in awarding exemplary damage under s 12(1) of the CBASA. The trial Court could have easily increased the award of K50,000 but had chosen not to, again, something which was within his discretion.
40. The appellants also raised this final argument under this ground. It is contained at para 67 of their submissions. It reads, If exemplary damages are to be awarded for breach of human rights by police officers they should be paid by the individual police officers. (See Andale More v. State & Others (1997) N1645. We dismiss this argument. It does not form part of ground 3(i). It was also not pleaded in the appellants’ defence, and it was not raised as an issue before the trial Court. See case: PNGBC v Jeff Tole (supra).
41. In summary, we dismiss ground 3(i) of the appeal.
42. We next refer to ground 3(j). The trial Court awarded K60,000 for past economic loss. His Honour awarded K20,000 for each year for the past 3 years. The respondent had been engaged in the informal market. The trial Judge had nothing to work with to make his assessment except on what were deposed to in the evidence of the respondent and his wife. The trial Judge adopted the decision in Paraia v. The State (1995) N1342 and stated that the Court was doing “the best it can” when he awarded K20,000 per year for 3 years. We find the said case relevant and note that it was appropriately applied by the trial Court for this head of damage. We also observe the views by Miles J in Kaka Kopun v. The State [1980] PNGLR 557 in such matters. His Honour stated:
On the calculation of loss of earning capacity it will often be the case that the court will have very little evidence to work upon where the plaintiff is engaged in gardening or hunting with little participation in the cash economy. In the present case, and others on which I have reserved judgment, there is some evidence of a general nature but in addition to acting on that evidence I think it is appropriate to adopt the approach of Mahoney J. in Baird v. Roberts[dcccxvii]18which was approved in Kerrs case[dcccxviii]19, namely that once a reduction of economic capacity is established, even if there is no evidence as to pre and post accident possible earnings, a trial judge must, in general, assess some compensation in this regard; he cannot ignore the loss. [Underlining ours].
43. So, with these, we note the calculations for loss of past income made by the trial Judge in the Court below. We find his calculations to be within is discretion and the sum awarded appropriate, that is, when he awarded K60,000 in loss of income for the past 3 years.
44. We dismiss this ground of appeal.
45. The next ground of appeal is 3(k). The trial Court ordered K25,000 as future loss of income. The trial Judge assessed this loss by appropriating K5,000 and multiplying that by 5 years to get K25,000.
46. Again, the trial Judge’s power is discretionary. The question we ask is whether the trial Judge erred when he exercised his discretion. We consider that a fair course or approach could have been for the trial Judge to use the same figures that he used in his assessment for past loss of income. Based on the respondent’s evidence, his disability has caused him to earn about 30% from what he would normally make daily, that is, premised on his daily earnings which he had estimated at K200 (pp 53 of the AB). If we apply the K20,000 per annum earnings that was used by the trial Judge in his assessment for the respondent’s past loss of income herein, then 30% of K20,000 would be K6,000. So, the respondent would have been expected to fall short of K14,000 per annum based on his calculations. The respondent’s estimated projected loss for future income may be K14,000 per annum minus contingencies which if estimated at 20% would be K11,200. If we multiply K11,200 by 5 years, which was the number of years used by the trial Court, the sum could have been K56,000, that is, an increase of K31,000 from the K25,000 as awarded by the trial Judge.
47. Having said that, we however note that it was within His Honour’s discretion to order K25,000, that is, even if the said awarded may be regarded as slightly lower or higher. We find no serious error committed by the trial Judge there that should require our intervention.
48. The final ground of appeal, 3(l), relates to interest. The appellants, whilst they acknowledge that interest was correctly applied at 2% per annum as required under the Judicial Proceedings (Interest on Debts and Damages) Act 2015 (JPA Act), argue that the time should be shortened to from the date of filing of the proceeding to the date of the final decision the subject of this appeal. They argue that His Honour erred when he extended the period by 5 years premised on trauma as a relevant consideration for the delay in pursing the matter. The appellants submit that there was no evidence adduced before the Court below that justified this consideration. As such, they submit that the trial Judge erred in the exercise of his discretion.
49. We will address this ground of appeal in twofold. Firstly, the appellants claim that there was no evidence to justify his Honour’s view when his Honour stated:
There has been 4 years delay in filing the proceeding and a further 2 years delay to bring the matter to hearing. In part, that may have been due to the trauma suffered by the plaintiff.
50. Although there was no medical evidence adduced by the respondent to show trauma as stated therein, we note that this was made as a remark or observation by the trial Judge rather than as a finding of fact. We therefore dismiss that part of the ground of appeal.
51. The second fold of the argument relates to the pre-judgment period of 5 years. The appellants’ reliance on the case Cheong Supermarket Pty Ltd v. Muro [1987] PNGLR 24 is noted. However, we also note that the said case was considered and applied by the trial Judge in the application of his discretionary power on the matter (para 51 of the judgment at pp 106 of the AB). His Honour actually took into account the delay factor in the exercise of his discretion. In so, doing, he reduced the pre-judgment period from over 6 years down to 5 years. In our view, it was entirely within his discretion to do so (that is, in assessing the pre-judgment period from the time when the cause of action accrued 7 May 2015, to the date of the judgment on 17 June 2021). His Honour could have left it there at 6 years or reduced it down further to 2 years. In this case, His Honour decided to reduce it by a year.
52. We therefore dismiss ground 3(l).
SUMMARY
53. In summary, except for ground 3(f) which covers an award for special damage which we uphold and dismiss, we dismiss all the grounds of appeal, namely, grounds 3(a), (b), (c), (d), (e), (g), (h), (i), (j), (k) and (l) of the appeal.
54. So, in summary, the final judgment made by the trial Judge in the sum of K344,020 shall discount K3,520 (i.e., the sum awarded for special damage), thus the final judgment sum shall be K340,500. Pre-judgment interest, which was calculated based on the figure K238,520 whereupon interested was calculated at K23,852 (i.e., calculated at 2% per annum for the past 5 years), shall be reduced. The new final calculated interested sum for the pre-judgment period (i.e., K238,520 minus K3,520) shall be K23,500 (i.e., 2% of K235,000 x 5 years) respectively. Post-judgment interest calculated at 2% per annum shall also apply to the judgment sum K340,500 and not K344,020. The other orders of the Court below made on 17 June 2021 shall remain unaffected.
55. In regard to cost, given that we have partly upheld the appeal but at the same time dismissed nearly all the grounds of appeal, we will order each party to bear their own costs of this appeal.
ORDERS OF THE COURT:
56. We make the following orders:
The Court orders accordingly
________________________________________________________________
Solicitor General’s Office: Lawyer for the Appellants
Public Solicitor’s Office: Lawyer for the Respondent
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