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Dagu v Independent State of Papua New Guinea [1995] PGNC 15; N1316 (5 April 1995)

Unreported National Court Decisions

N1316

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

WS NO 303 OF 1994
BETWEEN:
SALE DAGU
And:
INDEPENDENT STATE OF PAPUA NEW GUINEA

Waigani

Salika J
5 April 1995

INJURY TO EYE - 90 to 95% incapacity to right eye - General restriction on plaintiffs activities - Assessment of damages.

Cases Cited:

J Kennedy v Nalau & State [1981] PNGLR 543

T Murray v Kinamur [1983] PNGLR 446

J Rohrlach v Evangelical Lutheran Church [1985] PNGLR 185

S Opa v State [1987] PNGLR 469

R Aura v Papuan Airline Transport Limited [1963] PNGLR 272

Counsel:

Mr Kamburi for the Plaintiff

Mr Maeokali for the Defendant

5 April 1995

SALIKA J: This matter is before this Court only for the assessment of damages. Liability has been determined. The State (defendant) has been found liable for damage together with interest and costs.

The plaintiff had claimed damages for injuries sustained in a motor vehicle accident on the 13th October 1990. He sustained injuries to his knee, head and face and subsequently underwent surgery to the cataract of his right eye. He was 34 years old at the time of the accident.

Evidence is that the plaintiff a security officer was a passenger on a moving motor vehicle, an Isuzu station wagon along the Waigani Drive near Club Germania. A motor vehicle owned by the defendant registration number ZGL 575 driven by a police constable named Mathew Hebe bumped into the rear of the vehicle the plaintiff was travelling in. As a result of the impact the Isuzu station wagon ran off the road and overturned several times. The plaintiff was thrown out of the vehicle and landed on the side of the road. He could not recall anything after that as he was unconscious and regained consciousness in the hospital. The plaintiff was bleeding heavily from his head, face and knees. He suffered deep lacerations of about one to two centimetres to the head. He also suffered laceration of three to 4 centimetres deep below the right eye. The lacerations were cleaned and stitched. He suffered eye irritation which was treated with eye ointment.

The plaintiff was unconscious from the impact for about 4 1/2 hours. He was in pain when he regained consciousness. The eye irritation continued and worsened. He left work in January 1992 and on 23rd January the eye was operated on and the cataract was removed.

Medical evidence from Dr Kerek and Dr Korimbo confirmed that the plaintiff developed traumatic cataract of the right eye which reduced his vision dramatically. They confirm that the eye was operated on to remove the cataract. The right eye now has a vision of 1.5/60 to 6/60. This represents a 90 to 95% visual incapacity to his right eye and there is nothing more that can be done medically to improve that. The 90 to 95% incapacity represents a near blindness stage in so far as the right eye is concerned.

This means also that the plaintiff cannot do some things that he used to do. He resigned from his work because of the difficulty he had working with only one eye. He is unable to drive a motor vehicle as he used to before the incident. He is not able to work in his garden to grow vegetables and cut firewood as he used to. He no longer enjoys the company of his friends and cannot now participate in social activities that he once enjoyed. The plaintiff is now wholly dependant on friends and relatives. Furthermore now that he effectively has only one eye he will have to be very careful in what he does to protect the remaining eye.

Mr Kamburi the lawyer for the plaintiff cited a number of comparable “eye” cases such as Jacqueline Kennedy v Jerry Nalau and the State [1981] PNGLR 543 where a female child of 9 months suffered facial cuts and lacerations following impact with the dashboard of the car. The lacerations were surgically repaired but she continued to suffer from irritation to the eye which was susceptible to the wind and dust. The plaintiff was awarded K10,600.00 in general damages including K1,200.00 for future economic loss and K500 for future medical costs. He also cited Takie Murray v Norman Kinamur [1983] PNGLR 446 where a middle aged married woman suffered an injury to the left eye as a result of an assault upon her. The eye was surgically removed and an artificial one was inserted which created irritation, disfigurement and psychological distress. She was awarded K20,000.00 in general damages. Mr Kamburi also referred the Court to the case of Jane Rohrlach v Evangelical Lutheran Church [1985] PNGLR 185 where the plaintiff’s child was blinded in one eye by a staple fired by a fellow student child whilst at school. Damages in that case was agreed to and settled in the sum of K52,452.86.

I also find some assistance in the case of Seke Opa v Independent State Of Papua New Guinea [1987] PNGLR 469 where the plaintiff a village man in his mid thirties suffered amongst other severe injuries, injury to his right eye resulting in blindness. He suffered a severe head injury, loss of ability to eat, a left arm totally paralysed and his left leg partially paralysed. He was awarded K60,000.00 for pain, suffering and loss of amenities.

The cases which have been cited are of course different in nature in that the circumstances and extent of injuries suffered are different. They are useful in helping the Court to decide a just award.

The plaintiff in this case was a security officer earning K95.00 per fortnight. Because of the injury he sustained he resigned. He is now unemployed.

I am satisfied that prior to the accident the plaintiff was a robust and active person with no disability in his eyes. I am further satisfied that the sunlight irritates his eyes and that constantly disturbs and annoys him which in turn makes it difficult for him to secure any employment. He is almost blind in his right eye.

God created mankind, animals, fishes, birds and insects with two eyes each for good purpose. Presently bulk of mankind are born with two good eyes. The eyes are precious. In 1963 Smithers J in considering damages for a 20 year old plaintiff who had a 50% visual incapacity in the case of Rouney Aura v Papuan Airline Transport Limited (1963) PNGLR 272 said:

“It must never be forgotten that each eye is a precious possession - precious because of its capacity, and as one of man’s links with the outside world, an essential part of a man’s body.”

I agree with what was said then and I think it should be said again now that eyes are indeed very precious. One only has to be blindfolded to appreciate the value of both eyes.

Mr Kamburi has suggested that the Court award:

(a) K18,000.00 for general damages pain and suffering and loss of amenities;

(b) K2,000.00 for economic loss;

(c) K1,337.00 interest of 8% from issue of writ to date of judgment.

Mr Maeokali the lawyer on record from the Attorney-Generals Office has failed to submit any figures.

Mr Kamburi’s figures are based on comparison to the cases of Takie Murray (supra) and Jane Rohrlach (supra). I ask myself how much in monetary terms is the loss of 90 to 95% loss of sight to the plaintiff’s right eye? The two instant cases referred to are 1983 and 1985 cases respectively.

I am of the view that the fair and reasonable amount for pain and suffering and loss of amenities is K20,000.00 and I so order.

Interest is calculated from the date of issue of the Writ (17th May 1994) to the date of Judgment (7.04.95). Interest is K1390.47 over a period of 10 months 3 weeks.

I would allow K2,000.00 for economic loss.

I assess damages in the following manner:

I award costs to be assessed to the plaintiff.

Lawyers for the Plaintiff:

Lawyers for the Defendant: